International Symposium on Language, Law and Life
[15-17 Dec. 2003, Lucknow, India]
Shikhaa Beri, Student, NALSAR University of Law, Hyderabad, India;
SALUS POPULI EST SUPREMA LEX- Regard for the public welfare is the highest law. BUT, would that very ‘public’, understand the meaning and substance contained in the abovementioned maxim? Yes, the layman, the common man, the public. For that ordinary person, the legal jargon is all Hebrew and so are most of the matters concerning the law that he comes across.
Legalese, a very grandiloquent term indeed, describing something, that in my opinion serves no useful purpose and instead makes the language of law problematic, saving style and form that it lends to legal texts. But where this style is at the cost of substance and clarity of expression for the common man, it becomes unnecessary and quite a nuisance.
In his book, Language and the Law John Gibbons talks about ‘language constructing the law’ as well as ‘the language disadvantage before the law’. Language can be a boon or a bane depending upon how it is used by the writers of law. When law itself is concerned with safeguarding the interests and rights of the common man, the language must cater to them. Not only to ensure that he can bring it to his aid but also because he has a right to be made aware of the Law that governs him, in an elucidated form. The occurrence of Latin words and phrases in English legal texts pose problems even for lawyers and EALP (English for Academic Legal Purposes) students in their reading as brought out by Dennis Kurzon in one of his papers. (Latin for Lawyers: Degrees of Textual Integration)
A simplification of the legalese is required so that the language of the common man is the language of the law, the use of plain English instead of the alien legal jargon.
In August 1976 the first plain English document in Australia was released- a car insurance policy using readable English instead of old-style legalese. And now, with support of the government through various law simplification and plain English programs, it has really come of age as private, public and community sector organizations realize the importance of clear communication.
In Britain also, the movement started in 1979 with the Plain English Campaign- a grassroots organization. And by 1982, the British government adopted a formal plain English policy. Today legislative guidelines throughout the world encourage drafters to make legislations clear and intelligible to the common man.
The international plain English movement has gathered force in the last ten years, but there’s still a long way to go. The movement will succeed in its purpose when the writers are convinced that the costs of poor communication are enormous and also cured of the misconception that plain English would mean sacrificing accuracy for clarity.
Sophie Cacciaguidi-Fahy, Law Faculty, National University of Ireland, Galway, Ireland. email@example.com
The Right to Linguistic Diversity or Language Discrimination before The Law? Deconstructing The University College, Galway Act 1929
Linguistic disadvantages or language inequities before the law are not always to be found in the Courtroom or in Government’s language policy making but can similarly be observed in labour law. This paper proposes to highlight a different type of language and linguistic‘discrimination’ when facing the law all together.
Under Section 3, The University College, Galway Act 1929 requires that the University must “… appoint to such office or situation a person who is competent to discharge the duties thereof through the medium of the Irish language”, patently disadvantaging non-Irish speaking candidates. The Act purports to protect the use and the implementation of the Irish language, thereby requesting that all academic and administrative employees, as set out in Statute XXXII, sit a statutory examination in the Irish language (oral and written) independently of the recruitment interview taking place.
This paper will discuss how the legal discourse of the Act and subsequent Statutes have been used as a mean of constructing and reinforcing national identity. Using Dáil Debates (Parliament), the 1929 Act, minutes of discussion at Faculties, Academic Council, Udarás na hOllscoile (Governing Authority), this paper intends to carry out an analysis of:
· the legal language contained in the 1929 Act, Statute XXXII and other subsequent amending Statutes;
· the rhetoric of the Act debates since 1929 to highlight the strategies adopted by the academic community to exploit the lacunas of the language of the Act;
· how the Irish language requirement of the Act and the principles of linguistic diversity and non-discrimination, under the European Charter for Minority Languages, are reconciled and integrated into the framework of an increasingly multilingual and multi-ethnic Irish society;
· analyse the legal consequences of the Act, Statutes for the recruitment/appointment process and the legal challenges to the Act.
Lastly, it will consider the interaction between language, national identity and the law, in light of the Groener 1989 ruling by the ECJ reflecting a greater willingness to address the complex legal realities and disadvantages of the use of Irish as the first constitutional language.
Parboty Chakraborty, Kolkata, India
Indian legal system primarily consists of srutis and smrtis. This is laid down in the Vedas originally and later in the Samhitas of many exponents like Manu, yajnayavalkya, Vasistha, Harita and others. The concept of dharma is the source of law in the Indian perspective of jurisprudence. But in such wide range of texts handed down from generation to generation, problems may arise regarding the language of the law. Some methods of interpretation of language naturally originated to apply the correct justice following the books of law and their commentaries too. The principles of interpretation help in understanding the correct meaning of a provision of law. In the cases of ambiguities, seemingly contradiction, conflicts between different sources of law and other doubtful areas, the procedure adopted by India traditional thinkers are required to settle the meaning for each issue and consider arguments both for and against, and to arrive at a final decision. There are some maxims or Nyaya which may be used either for interpretation of the provision or to explain the situation in a given case forcefully.
The present paper makes an humble attempt to deal with some methods of interpretation concerning the language of the law.
Janet Cotterill; firstname.lastname@example.org
[Abstract to be announced later]
Celina Frade, Doctoral Student in Linguistics, Faculty of Letters and Arts, Federal University of Rio de Janeiro (FAPERJ), Brazil; email@example.com
This paper addresses recontextualization in legislative genre in the two main contemporary legal systems: the common law and the civil law. Though similar in their intent to regulate human activities by words, legislative genre displays variations in the way information is recontextualized in both systems. Recontextualization is a dialogistic property of legislative genre which involves the relocation of parts (or aspects) from previous legislation and their fitting into other legislation, which results in textual changes and changes in meaning as well. In general, the two types of legislative recontextualization are intratextuality and intertextuality. The former is more local and concerns the relations between or within section and subsections; whereas, the latter is wider in scope and involves cross-referring to other legislation or legal texts and the implicit shared specialized knowledge of the meanings of legal principles and concepts associated with the profession. But, most relevant of all, recontextualization affects the law interpreting in terms of the linguistic and pragmatic concepts of generality, fuzziness and vagueness of terms and expressions dependent upon each legal system usage and immediate context of application. We illustrate our claims here with examples taken from two modern arbitration model laws: the UNCITRAL Model Law on the International Commercial Arbitration and the Brazilian Arbitration Law. To conclude, we suggest further research on legislative genre across legal systems. (220 words)
Sandra Gollin, University of Western Sydney, Australia;
Embedding language awareness in the law curriculum: a scaffolded approach
The language of the law is generally perceived as difficult and obscure, even to native speakers. For law students whose first language is not English, the unfamiliarity is compounded by lack of confidence in reading cases, thinking about them within critical frameworks specific to legal discourses and in writing effectively about them in academic English. In a current project at an Australian university, these issues are addressed in a practical way. In a first year core legal subject, the academic discourse skills involved in preparing a single assignment are analysed and the assignment preparation process, including case analysis, critically reading sources, summarizing, planning and writing responses are carefully scaffolded and practised within the curriculum. The benefit of this approach is that genre-specific language skills are embedded in the course structure, making the learning of academic legal discourse more meaningful and immediately available than through learning generic skills in a separate course.
Risto Hiltunen, Department of English, 20014 University of Turku, Finland
In the last few decades, the language of the law, as it appears in the British Acts of Parliament, seems to have undergone some marked changes in its syntactic structures. Reading present-day Parliamentary Acts side by side with their earlier counterparts from a couple of decades ago suggests that the texts have become "simpler" in certain respects over the years. The materials indicate, in other words, a process of "simplification".
This paper will examine the reasons for the overall impression of simplification in terms of some of the syntactic parameters of prototypical legislative texts that are traditionally regarded as features complicating the language of the law, especially those having to do with sentence structure. By comparing earlier and present-day data in this respect, it will possible to explain how (deliberate) syntactic change has affected legislative writing internally in the past few decades. The external motivation for such a development, on the other hand, will have to be sought in the social pressures of extralinguistic reality.
Gayane Hovhannisyan, Yerevan State Pedagogical University, 5 Kanjyan Street, Yerevan 375010, Armenia
[Abstract to be announced later]
Maya Khemlani David, Faculty of Languages and Linguistics, University of Malaya, Kuala Lumpur 50603, Malaysia
Richard Powell, College of Economics, Nihon University, Misaki-cho 1-3-2, Chiyoda-ku, Tokyo, Japan
Constraints On Language Choice In Postcolonial Legal Systems:
Comparing Kenya And Malaysia
Why does English continue to dominate written and even spoken discourse in the legal systems of most former British colonies, including polities with more widely spoken national or official languages? Evidence from two polities at opposite ends of the postcolonial language planning spectrum suggests that localised sociocultural and technical constraints have a marked influence on language choice.
In Kenya, although far more people have greater proficiency in the national language, Kiswahili, lawyers are trained and judicial proceedings conducted almost entirely in English, which is the only language the constitution is drafted in. In contrast, comprehensive efforts have been made in Malaysia to implement Malay as the language of the courts, in keeping with national language policy. Yet here too, the education and culture of the legal profession produces patterns of code-switching in the courtrooms that evince a central role for English.
By comparing the overall position of English in two divergent legal systems from a language-planning perspective, this paper considers some of the barriers to vernacularising postcolonial law, focusing in particular on: national language policy; corpus planning; legal training; and de jure and de facto language use in the courts.
Debarupa Banerjee, Students, NALSAR University of Law, Hyderabad, India;
When Shakespeare made Hamlet say to the grave-digger “Why may not this be the skull of a lawyer? Where now be his quiddities, his quillets, his cases, his tenures, and his tricks?” he had really managed to capture the essence of the relation between the lawyer and his legendary rhetoric. Shakespeare had meant this to be a slur rather than a compliment and this distinction is important because it highlights the fact that the problem of pompous, complicated language of the law was as recognised then as it is now. It would not be wrong to say that the problem is even more acute in today's context than what it was even a few decades back. With more and more people becoming aware of their rights under the law, with more and more and people taking recourse to the law, the language of the law is increasingly posing hurdles to the comprehension skills of the layman instead of the reverse being expected. What is it that makes lawyers, judges and legislators act in tandem when it comes to mystifying the language of the law? Why is such mystification required- is it the exclusion of the non-legal fraternity that is the primary objective here? Ultimately what is the advantage in using legal argot when plain and simple language is equally or perhaps, more effective?
On the whole, the dubious distinction that the language of the law enjoys at present should be done away with and done away fast. The only way in which this can be done is to throw the doors wide open for the layman, to include him, to make the language of the law as simple and plain as can be. This is even more relevant when we attach so much of importance to the maxim- ignorance of the law is no excuse. As rational beings, does not it strike us as odd that we are expected to know the law when the language of the law is not at all conducive for the same?
The technicality and the ambiguity of this language is justified on certain grounds. Firstly, that this language is meant for both legal and lay persons and so it has to be in its present form. Secondly, the use of such language also helps demonstrate the power and authority of the legal personnel.
But are these sound justifications? There is a considerable scope for doubt at this juncture.
The language of the law is wordy, dull, unclear and pompous. So, the objective of this paper is to attempt to divulge the incomprehensible character of the legal language, reasoning out simultaneously, the justifications for and against the existence of such a form and pattern. The possible solutions to this problem shall also be suggested.
B. Mallikarjun, Central Institute of Indian Languages, Manasagangothri, Mysore, India;
The history of language rights in the Indian can be traced back to the period of the Emperor Ashoka ( 268 - 226 BC). He was the first ruler to recognize the language rights of people. He ordered that his edicts and directions relating to governance and righteous living were communicated to the people in their language, and not in his language only. Hence, today we see his inscriptions in the languages of the people in different parts of the country. That was the time when the ‘law’ was normally not written, but was mainly conventional and practiced by the people as given tenets of life for the community and individuals to follow. Although executive orders and decisions were recorded (we see this happening in some inscriptions retrieved throughout the subcontinent), written Law or codification of laws as a body of literature that was intended to be adhered to and interpreted in judicial proceedings is almost an innovation, in spite of the widespread knowledge of Manu’s Dharma Shastra, and Islamic Shariat. This was a contribution of the British rule and it had its own impact. The formal system of justice was institutionalized through appropriate constitutional provisions. Adjudication or judicial review of rights relating to language and other cultural institutions naturally formed part of this process
Paulston (1997) writes, “Language rights is an important new topic for us, because their existence usually reveals past and present injustice or exploitation against the weak in the world. Our responsibility as academics is the careful exploration of the nature of language rights and their consequences.” Accepting this statement as a general premise, it is intend to document, analyze, and interpret the status of language rights in general (inclusive of both the majority and minority populations) as they exist in the statutes and their practice in reality in India.
In the literature, the term ‘language right’ is treated synonymously with ‘linguistic rights’ and ‘linguistic human rights’. Some scholars consider these as individual rights and some others consider them as collective rights. Different scholars and different countries treat them differently. There are overt primary rights, often formulated explicitly, and secondary rights that are covert in nature because these secondary rights are the consequences of some other right. The epicenter around which the discussion of language rights normally revolves is mainly the rights of the linguistic minorities.
The sources of these rights are: the international declarations, constitutions of the countries, legislation, policy statements, the official communiqués issued by the countries for the promulgation and implementation of language related orders and declarations, reports of the committees or commissions and the judgments of the courts relating to language use in different domains.
The wind of economic globalization blowing across the world is bringing changes in every sphere of large number of countries. The acceptance of globalization as a dominant economic model has introduced certain urgency to modify even language loyalty and identity questions in the minds of the citizens of various countries. English is fast replacing other languages as the lingua franca.
This paper discusses: Rights relating to language education at all levels as enshrined in the constitution; rights bestowed through official orders in continuation of the constitution ; the interpretation of the rights relating to language by the courts of law and the rights applicable as part of the declaration of the human rights. These include - primarily right to learn a language, right to learn through a language and secondarily rights of users of languages and the rights of languages themselves.
Hisham Obeidat, Assistant Professor, Department of English, Yarmouk University, Irbid, Jordan;
A legal document, “Specific Power of Attorney”, was translated from English into Arabic, and forwarded to the department of land to authorize the attorney-in-fact act on behalf of his representative. Alas! The document was rejected by the clerk at the department of land on the ground that the document does not sound legal, let alone idiomatic Arabic. The attorney in fact passed to me the Arabic document along with the English to figure out the reason (s) upon which the Arabic is altogether rejected. In turn, I have gone over the Arabic and compared it with the English to conclude that the performative utterances deployed in the English document are leveled to the zero denying the attorney the legal right(s) and the authority given to him to execute the instrument.
Teaching an advanced course in terminology, inherited from a colleague, I passed both the Arabic and the English documents to my M.A students enrolled in the course. Unlike the clerk at the department of land, the students assume that the Arabic translation sounds a good legal document for it is being faithful to the English. In brief, I argued with the students the reason(s) behind adopting the metaphor of “a faithful wife to her husband” as a translation strategy to cope with texts like, for instance, legal genre. They ascribe this to their training as the focus centres around the translator, the photocopying machine and not a creative writer who weighs both the spirit of the legal document and the demands of the consumer. Contrary to this perception, I faced the students with the response of the clerk at the department of land. Puzzlement appeared on their faces, with whom to make business the theory they grasped in the class room or the consumer, the clerk or the lawyer, etc.
This paper concerns itself with finding a positive response to the paradox erupted due to serious discrepancy between the recipe given to the students and the consumer’s demand. The translation strategy(s) offered in the training programme, department of English, Yarmouk University is fundamentally source text oriented, hence it suffers serious limitations, turning the translator to just a machine. Fundamentally, it is the purpose of this paper to steer the students’ perception to devise a translation strategy(s), accommodating both domains of the equation, the ST and the TT. A strategy that is capable of giving the translator a room to maneuver, to be creative to satisfy the demands of the consumer. To do so, the paper would recourse to readers’ response as one of the parameters to provide evidence(s) that is significantly crucial to account for the TT readership, in the meantime.
Devaraj Panda, Dept. of Zoology, B.J.B. College, Bhubaneswar (Orissa), India
Legal terms of marriage in Manu Samhit and their adoptation in Bengali, Hindi and Oriya: a study
[Abstract to be announced later]
Ajit Sharma, Student, NALSAR University of Law, Hyderabad, India
As Society changes, law cannot remain immutable. The courts can therefore by the process of judicial interpretation adapt the law to suit the needs of the society. By interpretation is meant a process by which courts ascertain the meaning of a statutory provision for the purpose of applying it to a situation before them. Interpretation, in a modern state, is actuated with some judicial policy to curb some public evil or to effectuate some public benefit.
The paper analyses two much publicized pronouncements of India’s apex court wherein the judiciary played a proactive role in interpreting statutory language to protect the rights of women.
In the Gita Hariharan case the court discussed the law and said that the phrase “and after him” in the guardianship statute did not necessarily mean after the death of the father. It said “after him” would mean in the abscence of, thus affirming that a mother could be natural guardian of her children.
Secondly while delivering the famous Vishakha judgment the court interpreted “Sexual harassment” as violative of the gender equality clause enshrined in article fourteen of the constitution. This judge made law was created in a landmark decision, which avoided strict grammatical interpretation and constructed “Sexual harassment” as inclined towards protection of women’s rights.
The problem of interpretation is a problem of meaning of words and their effectiveness as a medium of expression. Even a cursory examination of our laws will reveal a distinct paternalistic bias. The paper concludes with observation that the courts have not literally but liberally interpreted ambiguous words in favour of protecting the rights and interests of women in India.
K.K. Sharma, Advocate, Supreme Court of India, A-51, Preet Vihar, Delhi, India; firstname.lastname@example.org
[Full paper submitted; Abstract not available]
Ranjeet Singh Bajwa, School of Panjabi Studies, Guru Nanak Dev University, Amritsar, Punjab, India;
Social Action as a Signified Process: Critical Theory as Operational Legal Sign in Judicial Decisions
This paper pivots around a judgment of a county judge (Additional Session Judge, at present Hon'ble Retired Judge of High Court of Punjab and Haryana). This study also falls in the ambit of 'Law and Life' which is significantly concerned with 'Sociology of Law'. our main concern is with the human behaviour which is measured through rules of logical thought. Life and law perports to various analytical types of groups in the movement of a durational process in a legal discourse. Bound to the continental tradition, law in reality represents itself to us as a species of discourse (whether concerning itself with the discourse of statuettes, judges, jurists or doctrines) and as a discourse subject to the law of language or vice-versa. The present study also speaks about how legal reasoning conforms to the 'being' of a person killed and the 'dialectic' of the person who is a killer.
On the whole the legal file which constructs the 'text' of this case is used here as a corpus which explicates to the pure knowledge in juridical and cultural sciences.
K. Sundara Raj, Acharya Patashala College, N.R. Colony, Bangalore, India;
This paper raises a few theoretical questions on the notions of discourse and social structures. Discourse is a social construct. Since discourse is a social practice too, social structures do affect the discourse. At the same time discourse also affects the social structures bringing about social changes. While legitimizing social practices in the discourse, the discourse ‘reproduces’ already existing social structures through ‘social actors’. The ‘re-production’ is not a mechanical activity. The social actors, who are also called subjects, are participants in the discourse in the sense that they are the recipients of the ‘actions’. Unlike the ‘grammatical subjects’ who do the ‘actions’, social actors are passive recipients of action. The social actors draw upon the resources of various social practices and discourse to be creative. Thus the whole process of ‘re-production’ seems to be circular.
The social actors imbibe their roles through institutions, which are also socially determined. The institutions legitimize the role of the actors through ‘agendas’, a set of ‘objectives’. But the agendas are not overtly stated. These hidden agendas refer to a set of unwritten objectives, which would mediate and re-produce the existing social structures and values. Social structures tend to reproduce – explicit reproduction brings resistance with it. So to undermine this, the ideology is presented implicitly. Take for instance the legal discourse. While high lighting certain ‘ethical’ and ‘moral’ values, each legal practitioner tends to make his/her presentations in the courts of law highly specialized. This would indeed make the legal discourse more and more opaque to the ‘common’ man and thus serve the agenda of the legal institution in a big way.
In this presentation, the above issues are discussed by making a ‘critical’ linguistic analysis of a particular legal argument.
Mats-Peter Sundstrom, Parlement Europйen, Division de la Traduction Suйdoise, ADG 09A001, Sweden;
Fostering Foreignness or Familiarity in Forensic Language?
Theory and Practice around EU Legal Acts in Swedish Translation
[Topic: iii. Legal translation and interpretation]
The European Union operates by far the largest ongoing translation project anywhere in the world. Tens of thousands of pages, to a large extent consisting of legislative acts and other legal documents are annually translated into ten other languages than their EU source language, a number soon to be increased to twenty or twenty-one with the upcoming enlargement May 1 2004 (the variation is due to the persisting uncertainty regarding the accession of Cyprus as a divided or unified nation, in which latter case Turkish would also find itself represented among the official languages of the Member States). Among the legislative acts, mention may be made particularly of two types: directives and regulations. The regulations are to be taken over ”lock, stock and barrel” into the respective legal systems of the Member States and thus come to appear in exactly the same language form as they had when once translated. The directives are subject to a procedure of transposition, i. e . they must incite the Member States to enact laws and other instruments the contents of which correspond to the intention as expressed in the directives, although the linguistic form may differ. In either case, however, there opens up a vast field of opportunities for linguistic influences to play themselves out on the national level of the various Member States. This is particularly the case with Member States having minor languages for their official languages. The reason is; they are almost entirely dependent on translations as the bulk of legislative work in the European Union is carried out in French and English, in that order. Obviously so, it might be added: where would for instance the service of the European Union find a sufficient number of employees qualified to debate and prepare legal documents of perhaps a highly technical character in languages such as Danish or, to add one of the newcomers from 2004, in Maltese?
Although the drafting of EU legal documents usually takes place in the European Commission, legislative power is vested in the Council of the European Union and the European Parliament. The present writer intends to examine the issue of languages in the European Union from the vantage point of a translator working for the European Parliament Swedish Division. Here, like his colleagues, he deals on a daily basis with essentially two legislation-related documents: parliamentary reports and opinion where the European Parliament expresses its view on draft legislative texts prepared by the Commission and amendments where, as the very name suggests, the parliament proposes changes in texts about to be adopted.
This said, mention should be made of two diametrally opposed approaches to legal languages. One consists of recognizing legal texts as a register where the very subject matter places it own syntactico-stylistic demands on the language employed, to the effect that this language be ”lofty” or ”elevated” from the concerns of everyday language. Up until now, this mode of thinking has largely dominated in Europe. Then comes the Scandinavian view, emphasizing, as it were, language democracy and ”ordinariness”. Laws and other legal acts should by virtue of their language be as close to the more humble, day-to-day spheres of life as possible, with due recognition given to the demands for exactitude and specific technical expressions. Basically, this has been the prevailing philosophy in the Scandinavian nations, notably during the post-war period.
The basic aim of this proposed paper is to attempt to find out how EU translators (exemplified by those working for the European Parliament) into a Scandinavian language (exemplified by Swedish) address the seemingly insoluble problem of reconciling two utterly different languages philosophies. We have what we could call an ”elevated style ideal” underlying the vast majority of the source language texts, whereas the target language users traditionally subscribe to a ”plain language ideal”. The discussion will be underpinned with examples taken from translators" manuals and formal sets of rules and illustrated with specimens of authentic translations, prior to and subsequent to language revising. The author thus hopes to give an image of what goes on in the so far largest experiment of practical multilingualism in the world, albeit from a somewhat restricted angle of what must necessary be a far greater whole.