Volume 1, Issue 2 -

Courts in the U.S. frequently apply a rule of statutory construction that calls for the words in laws to be given their “ordinary meaning.” The rule is based on the presumption that legislatures are most likely to have intended the language to be understood in their ordinary sense and on the value that people subject to such laws will more likely comprehend the rights and obligations granted to them. Courts are not, however, in accord when it comes to determining which of a term’s available meanings is the “ordinary” one. This article describes three methods for making this determination: the judge’s linguistic intuitions, dictionary definitions, and reference to linguistic corpora. We argue that the use of corpus analysis enhances the legal system’s ability to rely on actual distributional facts about word usage, thus enhancing the accuracy of ordinary meaning analysis. We apply the three methods to a case pending before the U.S. Supreme Court, Shaw v. United States , at the time this article is written. The issue in Shaw is whether the expression “defraud a financial institution” applies to a situation in which the defendant tricked a bank into releasing to him the funds of another depositor, when the bank suffered no loss. We look first at linguistic literature based largely on intuition, then at dictionary definitions, and finally at a corpus. Examining hundreds of examples from the Corpus of Historical English (COHA) developed at Brigham Young University, we find that the verb “defraud” is virtually always used to describe a situation in which the object of the fraud is also the target of the ultimate loss. Analyses based on the intuitions of linguists and on dictionary definitions are consistent with this result, although less robust. We conclude that if the Court wishes to be faithful to the ordinary meaning of the statutory language, it should rule that the statute does not apply to this situation.

Court proceedings should be fair. Accordingly, the right to be heard has traditionally been considered one of the fundamental principles of court proceedings. Earlier, this right was mainly interpreted in a normative and rather passive sense. Recently, however, the interpretation of the right to be heard has developed towards the requirement of active and factual participation of court parties on equal terms with the other parties involved. The explanation for this should be sought in modern (procedural) law, which is more sociologically influenced than has previously been the case. Nowadays fairness is also about feelings. Welfare in courts means not only the rule of law and legal security in its traditional form, but also a good atmosphere and the presence of concrete means to give fair experiences to people who visit courts. This places communication and interaction between judges and parties in a central position as some of the most important instruments for achieving a fair hearing. With regard to the formulation of judgments and decisions, it is important that court lawyers put themselves in the parties’ situation and give careful deliberation to the purpose of their texts and how they will be perceived and understood by those concerned. The media, too, has a key role to play as a communicating link between the courts and citizens. For the media to be able to give an all-round and balanced picture of the courts, decision-making processes in courts must, as far as possible, be observable, or, in other words, transparent. Therefore, courts are in the process of throwing open their doors and judges no longer tend to hide behind their law-books. Post-modern legal decision-making is “doing justice together” rather than isolated use of power. Courts need to face people. And to do that, they need to master the most crucial instrument of all, namely appropriate language use. The present article discusses how to realize/operationalize this “modern” form of fairness in courts and how to maintain it with reference to legal theory and practical needs.

A number of postcolonial jurisdictions function bilingually as a result of policies to open up law to indigenous languages. Planned bilingualism is typical of Asian polities that inherited English-based common law, with Bangladesh, Hong Kong, India, Malaysia, Myanmar and Pakistan all use languages other than English in legal documents and courtroom proceedings. There are also bilingual practices in the hybrid law of Sri Lanka and the Philippines and the civil law of former Portuguese colonies such as Timor Leste and Macao. Bilingualisation typically begins with innovation in the legal lexicon and proceeds to the translation or bilingual drafting of legal texts in order to facilitate use of a second language in litigation and jurisprudence. It may be an interim process ushering in comprehensive vernacularisation, but more often it results in the long-term cohabitation of two or more languages within the legal domain. This study is interested in the implications of such cohabitation for legal practitioners. Focusing primarily on Malaysia while making comparisons with other Asian jurisdictions, it considers the largely political motivations behind language-in-law policies, reviews the process and reception of planning and explores how language choice in legal education may affect career paths. Despite the empowering agendas behind much of the language planning that has gone on, in most cases a balanced bilingual profession remains an elusive goal.

The article discusses some questions that rise while referring to the disjunction phrases or, and/or in the Hebrew legal contract. It examines their role and points the linguistic functions they have in this contract, and also checks the necessity of the phrase and/or. The disjunction phrases or, and/or are very common in legal texts, and possess different functions, some of which are related to logic and semantics, and some that are related to syntax and pragmatics. With the help of pragmatic knowledge of the verbal context, external circumstances, the unique genre and especially the addresser-addressee relations some interpretations can be given to the role of these two disjunction phrases. The use of the disjunction phrases or, and/or and the linguistic interpretations that are yield at the research, are special and even surprising, but logical. It is noticeable precisely in such a type of discourse which supposed to be most accurate in order to prevent interpretation problems. The person drafting the contract uses the disjunction phrases as a technique to form vagueness or ambiguity in those places where he wants to control the contract’s details and to “leave the key” in his own hands in case the other side wants to interpret the contract in a different way.

This paper discusses questions about sources of knowledge in Dutch police interviews with child witnesses. Police officers are instructed to ask these questions in order to allow participants in the criminal procedure to assess the reliability of the testimony. In everyday interaction, asking “how someone knows” implies that what was said earlier is not taken for granted. Therefore, questions about sources of knowledge in police interviews are potentially delicate. This paper aims to show that (a) questions about sources of knowledge are related to a specialized institutional inference system and (b) children sometimes treat those questions as causing a dilemma between the need to provide an answer and the unusual character of the question. Drawing on insights from conversation analysis, the analysis focuses on occasions when children present their answer about the source of their knowledge as self-evident. These responses suggest that the question is not genuine and legitimate. At the same time, children still try to provide a relevant answer. The self-evident answers thus deal with the explicit request for a source of knowledge and, from their perspective, the unnecessary character of the question. Police officers generally ignore the self-evident aspect of the answers in their uptakes. Yet, when they do orient to it, they justify their questions as genuine information seeking questions. Police officers thus treat sources of knowledge as something they did not know, whereas sources of knowledge often can be inferred in everyday language use. We suggest that taking this unknowing stance conveys to the child and to the tape that the police officers are not presuming specific sources of knowledge.

Ever since the very beginning of the European Economic Community, the EU has regulated European linguistic diversity through a policy of multilingualism (Art. 217 of the E.C. Treaty and Council Regulation No 1 April 15, 1958). Within this policy, the legislator introduced the right of EU citizens to communicate with the EU institutions in each one of the official languages. The possibility of multilingual communication with the EU institutions is not only a practical solution, but a real “core” right, recognized even in the Lisbon Treaty. In this framework, it is worth providing practical solutions as well as considering whether or not, the European Union is also favoring the enactment of rights at the European level, by formulating, enforcing and even communicating the same rule to all EU citizens, with the aid of a multilingual drafting. The EU legal terminology providing rights comes into being through specific mechanisms of lexical creation, which chiefly consist of coining semantic neologisms. Moreover, all legal texts must be written in accordance with EU drafting guidelines, prescribing that “rules have to be drafted bearing in mind their translation in all the official languages”. The consequence of these drafting techniques is that multilingualism influences not only the translation, but the actual structure and content of the rule: very often the result of this praxis is a pragmatic, detailed, concrete regulation of legal instruments, rather than a system of rights. A clear example is given by the directives on consumer protection – nowadays “Directive on Consumer Rights” – and particularly the well known “right of withdrawal”; a consumer opportunity to withdraw from a contract within seven (now fourteen) days is undeniably a proper “right”. However, the regulation provided in the directives is more focused on the procedure of withdrawal (the instrument) than on the effect of the withdrawal from the contract (the right). In general, the multilingual drafting of EU norms – and consequently of EU rights – is not automatically functional to the effective transposition of rights in the Member States and to the substantive equality of EU citizens before European law. The paper argues that this problem – causing a lack of communication between the EU institutions in charge of the formulation of European rule of law and the citizens – might be approached through different methodologies: linguistic, anthropological, juridical. Particularly in the analysis of the legal language of the EU comparative law science is equipped with methods and instruments which proved to be useful for breaking down the legal discourse of the European Union going beyond its words and highlighting the various “formants” (norms), some of which exist and come to light directly or indirectly as a consequence of the multilingual formulation of EU law.

The prosecutor is an influential party in criminal justice systems, and this is true also of China. But most literature on China concentrates on the trial and criminal defence with comparatively little attention paid to the prosecution perspective. In this article, I make use of research data collected through courtroom observations, case file analysis and interviews when the Criminal Procedural Law of the People’s Republic of China (hereinafter the “CPL 1996”) was still effective. Given that the CPL 1996 was revised in 2012, I updated the research data in early 2016. This paper focuses on the public prosecutors’ performance in the courtroom at the various stages of the process such as the courtroom investigation – production, examination and cross-examination of prosecution evidence, and courtroom debate; it analyzes both prosecution language and skills, and the court’s judgment. The paper also discusses the potential impact of the CPL 2012 on criminal prosecutions. The research findings show that prosecutors performed their responsibilities in the criminal proceedings whatever methods of questioning the defendant and evidence production are used; prosecutors tried their best to achieve the goal of conviction even with weak cases; and the decisions of the court mostly reflected the decisions of the procuratorate.

Modality, from the cognitive linguists’ perspective, relates to a “speaker’s assessment of, or attitude towards, the potentiality of a state of affairs” (Radden and Dirven, 2007, p. 233, Cognitive English grammar . USA: John Benjamins Publishing Company). A type of modality that is very much visible in contracts is the deontic modality. A considerable body of literature, various empirical studies and actual Philippine court cases put forward how deontic uses in legal documents such as contracts can bring about issues and confusion leading to comprehension problems. Contract drafting entails a specialized work that a legal drafter must be able to write assessable and comprehensible contracts. This study addressed how contractual modalities are interpreted in the Philippine context and investigated how the most commonly misused modal shall is employed in different Philippine contracts. In examining deontic meanings, this work attempted to address the following questions: 1) What modals/non-modals are employed in expressing the meanings of obligation, permission and prohibition in selected Philippine contracts? 2) How is the modal shall utilized in the given contracts? Matulewska’s (2010, Deontic modality and modals in the language of contracts. Comparative Legilinguistics 75–92) work on the three deontic meanings of obligation, permission and prohibition and Stark’s (2007, Drafting contracts – How and why lawyers do what they do . USA: Aspen Publishers) construct on the correct usage of shall in contracts served as frameworks of this study. Results reveal the concurrence or likeness in the use of modals of these contracts vis-a-vis the local codified laws and in a number of contracts in other countries (Bondi and Diani, 2010. Conveying deontic values in English and Italian contracts: A cross-cultural analysis. ESP Across Cultures 7 . Retrieved from http://edipuglia.it/wp-content/uploads/ESP%202010/Bondi-Diani.pdf). More importantly, two central findings of this study have uncovered the differences on the rules and at the same time the overwhelming number of incorrect shall uses, resulting in misunderstanding of the contracts, as reflected in a number of Philippine legal cases filed in court.