Inglese Garzone LIN 2 PDF

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INGLESE GARZONE LIN IIMOD 1THE PECULIARITIES OF LEGAL DISCOURSE IN ENGLISHEnglish law is based on COMMON LAW, that is different from our LEGAL ROMAN/GERMANIC LAW  GIUSTINIAN CODES developed in different ways in different countries  THE CIVIL LAW SYSTEM.These two areas are DIFFERENT IN THE APPROACH...

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INGLESE GARZONE LIN II MOD 1 THE PECULIARITIES OF LEGAL DISCOURSE IN ENGLISH English law is based on COMMON LAW, that is different from our LEGAL ROMAN/GERMANIC LAW  GIUSTINIAN CODES developed in different ways in different countries  THE CIVIL LAW SYSTEM. These two areas are DIFFERENT IN THE APPROACH AND IN THE CONCEPTUALIZATION OF THE LAW. In COMMON LAW SYSTEM we don’t have articles on which we can refer, it is based on PREVIOUS DECISIONS MADE BY JUDGES. IT’S A CASE LAW, common to the whole country.  no subdivision of law  A law created by communities Find the correspondence in translation is very difficult HIGH LEVEL OF CONSERVATISM IN LEGAL ENGLISH  some countries decided in 2000 to simplify the legal language, others as UK: traditional legal English US: renewal only in bureaucracy, not legal docs SCHEDA NUMERO 1: COUNTY COURT FORM Warrant of execution against Goods of Defendant – Form 43 FORM: Template for (modello per) whatever kinds of doc that should be written in legal English AUTHENTIC TEXT: memorandum of understandings, contract… they are legally binding (vincolanti). Legal English!  BOOKS OF FORMS NON AUTHENTIC TEXT: Written in English but not legal English. The topic is connected to legal problem, they’re not binding THE FIRST SENTENCE RULE: if you don’t break the sentence it will be more evident the relation between elements  IDEOLOGICAL CONVENTION  few possibilities of misunderstanding In pragmatic terms the structure is always the same. THE LANGUAGE OF THE LAW – SLIDE MOD 1 It includes: •Sentences of law (legally binding texts) •Statements about sentences of law It refers to: 1. Identify language that is LAW ITSELF  what we read 2. Statements about sentences of law  METADISCOURSE (esercitazioni!)

DISCOURSES AND GENRES

Legal English (Written)

Non-specialised publishing

The press

Academic(Specialized publishing)

Other kinds of popular Textbooks Journals Essays publications

Juridical

Legislative

Cases Judgments Frozen Formal

Contracts, agreements, insurance policies

Legislations, rules

LEGAL ENGLISH – WRITTEN: - NON-SPECIALISED PUBLISHING  THE PRESS and OTHER KINDS OF POPULAR PUBLICATIONS - ACADEMIC (SPECIALISED PUBLISHING)  TEXTBOOKS and ESSAYS and JOURNALS - JURIDICAL  CASES and JUDGMENTS - LEGISLATIVE  FROZEN (contracts, agreements, insurance, policies…) and FORMAL (legislation, rules and regulations…) LEGAL ENGL AS ESP = for specific purposes (a functional variation) Elements which determine the type of language we use, are: CONTEXT OF SITUATION CONTEXT OF CULTURE INSTITUTIONAL ORDER FIELD OF DISCOURSE (campo) MODE OF DISCOURSE (written/spoken) TENOR OF DISCOURSE (people involved)

REGISTER = SEMIOTIC CONFIGURATION OF A TEXT

A judgement should be read before it is valid. It has to BE SPOKEN OUT, than it survives in the WRITTEN FORM.

LEGAL LANGUAGE & SITUATIONS Various types of discourses associated with the structures and processes of the common law legal system or of international law

e.g. for trial: 1. Sources of law and originating points of the legal process 2. Pre-trial processes 3. Trial processes 4. Recording of judgment in law reports It is a loop: you rely on reports to start a trial → autoalimentazione di generi

HISTORICAL FACTORS  • Peculiarities of legal English result from its history • Systematisation of legal procedures: brought by the Normans • Predominance of law Latin until XIV century • Then law French until 1650: An Act for Turning the Books of the Law, and all Processes and Proceedings in Courts of Justice into English • Conventions continued to develop: maximum verbosity in early XVIII century 1650 END TO FRENCH PREDOMINANCE, ENGLISH STARTED TI BE USED IN COURTS. Non correspondence with civil law system: borrowings in English but concepts not used or don’t exist in common law system - paternal authority - usufruct - dolus - force majeure  in this case also the concept is borrowed, not only the term. Exception Non correspondence with common law: - bail = cauzione - classified as a tort = classe di illeciti civili “the law of tort” - trespass = chi entra nella proprietà altrui  anche effrazione, violazione… - anche di persone: varie forme di aggressione - domicile of origin = residenza. Se non scegli un domicilio vieni dal posto in cui sei nato - misdemeanour= un crimine minore. In past: offences crimes were divided into felonies (death) and m. (not death) - indictable offence = offence on which a procedure can be started (perseguibile per legge) - injuction = for someone to keep away from a place (ingiunzione) - property = DIFFERENT CATEGORIZATION IN COMMON LAW: 1. Real prop = proprietà immobiliare; you can’t own a land completely, it’s only formal, you can own a stacke (porzione) in which there’s the property. 2. Personal prop = chattels real (financial prop) and chatters personal (choses in action and choses in possession)  every kind of property is categorized FREQUENT USE OF COMMON WORDS WITH UNCOMMON MEANINGS  RUBRICA • action law suit • to alien to transfer

• to avoid to cancel • consideration benefit to promisor or detriment to promisee → un contratto non è valido senza consideration, cioè senza che entrambe le parti “mettano/offrano qualcosa” in cambio di qualcosa • to demise to lease (acquistare) • executed signed and delivered • hand signature • instrument legal document • motion formal request for action in court • party person contracting or litigating • save except • to serve to deliver legal papers • tenement estate in land • without prejudice without loss of any rights (“fatto salvo”) OLD ENGLISH AND MIDDLE ENGLISH WORDS  RUBRICA Frequent use of old English and Middle English words once in use but now rare: • aforesaid (mentioned above); forthwith; • here- words: hereafter, herein, hereof, heretofore, herewith • said and such as adjectives with an anaphoric value • there- words: thereabout, thereafter, thereby, therefore, therein, therewith, etc. • where- words: especially whereas and whereby LATIN WORDS AND PHRASES  RUBRICA • habeas corpus (a writ used to challenge the legality of detention. Orders the detaining party to "have the (living) body" of the detained brought before the court where the detention will be investigated) • prima facie (a matter that appears to be sufficiently based in the evidence as to be considered true), • ex parte (a decision reached, or case brought, by or for one party without the other party being present), • lex fori (the laws of the jurisdiction in which a legal action is brought), • certiorari (a type of writ seeking judicial review), • mandamus (a writ issue by a higher court to a lower one, ordering that court or related officials to perform some administrative duty. Often used in the context of legal oversight of government agencies), • mens rea (one of the requirements for a crime to be committed, the other being ‘actus reus’, the guilt act), res judicata (a matter that has been finally adjudicated, meaning no further appeals or legal actions by the involved parties is now possible). • versus, ab initio, per capita, etc. FRENCH WORDS  SLIDE, RUBRICA E LIBRO Use of French words not part of the general vocabulary: agreement, judgment, pleadings, defendant, appeal, arson (incendio doloso), property, attorneys, purchase, marriage, evidence, sentence, condition, felony, misdemeanour, heir, indictment, judge, larceny (furto), pardon, plaintiff, pleadings, tort, counsel, indictment, suit, plaintiff, trespass, verdict, pledge, to alien (in the sense of “to transfer”), chose in action, esquire, fee simple, specialty (in the sense of “sealed contract”), voire dire.

FREQUENT USE OF FORMAL WORDS AND EXPRESSIONS - IN COURT: YOUR HONOR… MAY IT PLEASE THE COURT - IN CONTRACTS: Whereas… time is of the essence… from the beginning of the world… be it remembered… - IN OATHS (GIURAMENTI): I do solemny swear that I will faithfully execute the office of president of the us… the truth, the whole truth, and nothing but the truth… ATTEMPTS TO EXTREME PRECISION  There is no code to defend you when signing a contract, you need to be precise and try to predict all possible variations - Choice of particular words and phrases - Use of term of art - Devices of composition such as numbering, lettering, indexing, etc - Recurrent choice of ABSOLUTES: ALL, NONE, NEVER, UNAVOIDABLE, UNBROKEN, UNIFORM, IRREVOCABLE, IMPOSSIBLE, OUTRIGHT… - Expressions indicating restriction as AND NO MORE, AND NO OTHER PURPOSE - Expressions indicating a broadening of meaning: INCLUDIN BUT NOT LIMITED TO, WITHOUR PREJUDICE TO, OR OTHER SIMILAR OR DISSIMILAR CAUSES. - Ossessively try to SPECIFY USE OF EXPRESSIONS WITH FLEXIBLE MEANINGS: deliberately used to make the contract adapt to the changing culture  Involve personal consideration (subjective) - Adequate compensation - Average - Clear and neat condition - Comparable - Convenient - Due care - Due process - Extreme cruelty - Improper - Inadequate - Malice - Obvious - Reasonable doubt - Satisfactory - Serious misconduct - Under the influence of a person - Under the influence of a liquor - Undue influence/restraint example: •definition of “negligence” omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do

MANNERISM Wordy, unclear, pompous and dull language  e.g. “Now therefore, in consideration of the premises, and the re-presentations, warranties, covenants and undertakings of the parties hereinafter set forth, and for other good and valuable considerations, the parties agree among themselves as follows….”

HOW TO SIMPLIFY LEGAL LANGUAGE: - Different useof graphic space - Use of YOU haven’t done smth instead of all premises - Intuitive words: claimant instead of plaintiff - 4 sentences instead of 1 - Details on payments Similar semplifications in UK, Ireland, New Zealand

STRUCTURE OF LEGISLATIVE TEXT  normative SCHEDA NUMERO 2: fixed structure in general. This is a statute written in 2000: convention. STATUTE OR ACT OF PARLIAMENT  it mostly consolidates the rules that already exist in law. The interpretation of the judge of this text is applied (his decisions) not the text itself. They can be amended or totally rewritten. They are identified by the number in civil law countries whereas in common law countries they are identified by the name of the act: 1. THE SHORT TITLE OF A STATUTE  It is established in the text itself; if we have some reforms about it we have the short title + the year. 2 THE LONG TITLE  it is a subtitle, the purpose of the statute, more details. 3 FIXED FORMULAS TO INDICATE WHO ISSUED THE TEXT  it will be valid only if it is issued by the Queen or the Presidente della Repubblica in Italy. (THE VETO POWER) - BE IT ENACTED = subjunctive: it has the value of an imperative: EXORTATIVE SUBJUNCTIVE. There is an APPOSITION: “as follow” (la seguente legge) - INACTIVE FORMULA = to execute the law: the law is legally-binding 4 RULES: A) DEFINITION RULE: - Title of the section - Definition: limited to the act FRAME DEFINITION: VAGUENESS of legal English: the definition doesn’t refer to someone in particular but it has to be interpreted by a judge. VAGUE BUT NOT AMBIGUOUS. SPECIFYING STATEMENT: vagueness is resolved by GENERAL STATEMENT, NOT TOO IN PARTICULAR. Setting of standards. DEEMING CLAUSE: to define something not by reality but by its legal fiction, an abstract idea in legal terms, it is an “if” for my purpose: not what is (ex. To be regarded…to be considered… is to be regarded as…) – come il timbro postale che fa fede anche se la lettera arriva dopo. - Specifies the meaning of the definition

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APPLICATION OF A FROZEN FORMULA: 1.3  recurrent phraseology, conformity is more important than creativity. “Before making regulations … the secretary of state or the national assembly for Wales SHALL CONSULT” = DEONTIC + FUTURE COMPONENT; “SUCH OTHER PERSONS AS…” = B) ACTION RULES PROVISIONS = THE REAL MEASURE - Syntactic discontinuity  to give more relevance but also more complex language. Some syntactic rules are suspended. - Graphic organization  list of letters  breaks the sentence into its components, makes easier to understand this complex language C) -

STIPULATION RULES Commencement Geographical Extent Title

NORM = SOMETHING USUALLY DONE RULE = NORMA GIURIDICA PERFORMATIVITY: AN INTRODUCTION  slide! If a certain formula is not written correctly the doc is not valid OERFORMATIVE UTTERANCES OR PERFORMATIVES are different from CONSTATIVE UTTERANCES cause they don’t simply describe an action but PERFORM CONTESTUALY THE ACTION THEY MENTION  what you do with a certain statement, not only the word but also the value i.e. a verb which, for the only fact of being uttered, performs an action ex: “I do” during a marriage. REQUISITES 1. NEITHER TRUE OR FALSE 2. THEY MUST MEET FELICITY CONDITIONS - There must exist an accepted conventional procedure having a certain conventional effect that procedure to include the uttering of certain words by certain persons in certain circumstances - Persons and circum must be appropriate for the invocation of the particular procedures invoked - The procedure must be executed by all participants both correctly and - Completely - The person participating must have the thought of the feelings required to invoke it and must intend so - They must actually so conduct themselves subsequently 5 CLASSES OF PERFORMATIVE VERBS: 1) VEREDICTIVES  Used to judge from something  estimate, reckoning, appraisal

- Then: REPRESENTATIVES  Assert, conclude… 2) EXERCITIVES  Used to exercise powera, rights or influence  appointing, voting, ordering… - DIRECTIVES  order, beg, implore, invite… 3) COMMISSIVES  used to commit yourself to do smth  promise - COMMISSIVES  promise, guarantee… 4) BEHABITIVES  To express gratitude or social behaviour towards someone  congratulate, challenge, thank - EXPRESSIVES  Thank, apologize, deplore, welcome… 5) EXPOSITIVES  make plain how we are using words  illustrate, assert, reply, repeat - DECLARATIVES  declare, appoint, enact… The second are LEGALLY BINDING PERFORMATIVES The original grammatical form of the verb in a performative utterance indicated by Austin is INDICATIVE, SIMPLE PRESENT, 1ST PERSON SINGULAR or at least PLURAL “We the people of US… do establish and ordain…” VARIATION IN GRAMMATICAL FORM Other forms deriving from the base form: - DECLARATIVE + 1 PERS SING+ DICTUM  I here by declare that 1. DECLARATIVE + 1 PERS PLU + DICTUM  We hereby declare that 2. The corresponding form IN THE PASSIVE  it is hereby agreed 3. 3rd PERSON TRANSPOSITION  in a context cointaining elements that indicate the subjectivity issuing the utterance  the plaintiff objects to the defendant inspecting the doc because… = object to the defendant inspecting the docs because… 4. OMISSION OF THE PERFORMATIVE PREFIX  the utterance is reduced to the dictum only  be it enacted in statute it is not repeated out the beginning of each rule, but all that comes after is legally binding 5. DECLARATIVE VERB + OBJECT/ COMPLEMENT + PREDICATIVE TERM  I appoint X CEO, I declare the hearing open 6. THE 5 IN PASSIVE  X is appointed CEO 7. THE TRANSPOSITION OF 5 IN THE 3RD PERSON  the Court appoints Mr X executor for… USE OF PERFORMATIVES IN LEGAL DISCOURSE TYPES IN DISCOURSE IN LEGAL TEXTS - PERFORMATIVE discourse  peculiar to the language of the law  establish something new, never mentioned before. - DESCRIPTIVE - PRESCRIPTIVE or PRECEPTIVE  (DEONTIC) discourse having the function of modifying other people behaviour  stating a fact: it becomes real. 1) ATHETIC vs THETIC: ATHETIC

a) ATHETIC PERFORMATIVES  they do not bring about a new state of things, simply PERFORM AN ACTION (I apologize)  it doesn’t produce anything b) THETIC OR CONSTITUTIVE PERFORMATIVES  give rise to a new state of things/new legale relationships/new legal status (I do –take this woman as my wife - ; I name this ship Queen Elizabeth)  constitute something new 2) PERFORMATIVE USE OF DEONTIC FORM Legal English: SHALL/SIMPLE PRESENT (interchangeable)  something that exists now and will exist in future (shall=more element of futurity). - “Above shall have effect in relation to the Scottish minister…..” 3) PERFORMATIVE USE OF SHALL  animate use for SHALL: it’s meaning is deontic someone is under an obligation - EXPRESSION OF AMENDMENT  there shall be inserted the following subsections  le parole saranno sostitute da = the new things substitutes for (posizione inversa all’Ita - There shall be substituted the word… - After…there is inserted... 4) VALUE OF SHALL IN NORMATIVE TEXTS - In verb forms with an animate subject shall often has a deontic value  The Director shall discharge his functions under the superintendence of..” - In other cases it is difficult to tell which of the two components prevails: any reference in that state shall be construed as referring to habitual residence… ALL MODALS IN ENGLISH HAVE 2 OR MORE MEANINGS: 1- DEONTIC “you must go away” 2- EPISTEMIC “He must be here by now” OTHER VERB FORMS USED WITH A PERFORMATIVE VALUE In the legal context: very few cases there are other different verb forms that take on a performative value as FIXED FORMULAS inherited from tradition.  present subjunctive in the enacting formula of statutes in the UK and other English-speaking countries containing a subjunctive: - UK: “BE IT ENACTED by the Queen’s most excellent…” - US: “BE IT ENACTED by the Senate…” But f.i. - Australia: “The parliament ENACTS…” - Canada: “Her majesty ENACTS as follow” Comes from Latin: constitutive subjunctive. Now some countries use more common formula: active, not passive, not archaic formula but simple present. SCHEDA NUMERO 3: JUDGMENT OF THE EUROPEAN COURT – PRESS RELEASE

Every time the judgment is published also a report on it is published to summarize  thy examine the case and produce an opinion about it, then the judge analyses the case and may or may not uphold the previous opinion. The judgment and its reports are published and referred by a number CASE: producing cheese called Parmesan which is not Parmiggiano Reggiano One of the local courts refers this case to the Eu Court. During the trial countries submit observations. Every country can say that they don’t want to implement a derogation in its territory. Intricansies due to Eu burocracy. REAL JUDGMENT PAGINA 172 It has a frozen structure, in the middle you have variations depending on the case, but the frame is always the same. It’s A NORMATIVE TEXT. The language of the European Court is very intricate, a lot of judgment come from civil law countries  much more intricate. (intertextual references, enormous legislation, complexity) Translators inside the Eu are asking to simplify these problems INTERNATIONAL CONVENTIONS PAGINA 211 AN INTERN CONV = STAES AGREE on certain issue Treaties are binding for all signing countries  VS  Conventions: is like a declaration of intent. They commit themselves to something, but is not compulsory. A frame doc. CONVENTION AGAINST TORTURE: One of the most controversial convention with regards to its application Written in 6 languages: Chinese, Arabic, Russian, French, Spanish, English. The first draft is written in 2/3 languages and then translated. The Ita version will be translated later on. Same structure of normative docs: 1- Name of the authority issuing it 2- Performative verb 3- (sometimes) a preamble 4- Rules (definitions, action, stipulation) 5- Signature PART I Title: all different possible situation are explicitly mentioned (torture, inhuman treatment…) typical of common law  define torture; all acts are SELF CONTAINED because there is no single legal system. It’s valid for many countries: broad definition  it’s a crucial article PREAMBLE: (each point is a RECITAL) 1. CONSIDERING RECOGNIZING…  references to some principles (framework) 2. HAVING REGARD  intertextual references 3. INTENTS

HAVE AGREED AS FOLLOWS  the formula is not enacting, in order to be vali...