Volume 2016, Issue 209 - Special Issue: Hidden meanings in legal discourse, Guest Editors: Le Cheng and Susan Petrilli

It is not with the State that personal responsibility arises towards the other. According to Emmanuel Levinas, the other is every single human being I am responsible for, and I am this responsibility for him. The other, my fellow, is the first comer. But I do not live in a world with just one single “first comer”; there is always another other, a third, who is also my other, my fellow. Otherness, beginning with this third, is a plurality. Proximity as responsibility is a plurality. There is a need for justice. There is the obligation to compare unique and incomparable others. This is what is hidden, unsaid, implied in legal discourse. But recourse to comparison among that which cannot be compared, among that which is incomparable is justified by love of justice for the other. It is this justification that confers a sense to law, which is always dura lex , and to the statement that citizens are equal before the law. From this point of view, State justice is always imperfect with respect to human rights understood as the rights of the other, of every other in his absolute difference, in his incomparable otherness.

The distinction between “initial meanings” and “additional meanings” which corresponds to that between “explicit meanings” and “implicit meanings,” evidences the complex stratification of signifying processes that subtend and orient discourse. Hidden meanings are implicit, mediated, indirect meanings, additional meanings. They are traceable not only in meanings determined by context, but also in meanings more independent from context. Initial, explicit meaning is meaning fixed by use and tradition, but all the same it is somehow conditioned by additional, implicit meaning, by hidden meaning. This paper focuses on two related assumptions, or hidden meanings that are no less than central to legal discourse: answering for self and telling the truth. Though the hidden meaning in these assumptions is not explicated, it in fact orientates legal discourse. Hidden meaning involves shared knowledge which is implied and taken for granted even though it is not voiced. The important question is: what is the collective, social conception of the subject that is tacitly implied in legal discourse, such to be capable of answering for self and of telling the truth?

Résumé Le droit est une des médiations institutionnelles de l’identité, puisqu’il régule les pratiques sociales exprimant l’appartenance de ceux qui les mettent en œuvre et qu’il institue les logiques qui structurent les rapports sociaux qui manifestent la sociabilité de l’espace public. La signification du discours du droit se distingue de celle de la parole ou de l’écriture dans les situations ordinaires de communication, car il s’agit d’un discours instituant. Dans le discours du droit, le sens caché est la part de la signification qui échappe à la performativité de l’énonciation. L’identité singulière de l’énonciateur fait l’objet d’un refoulement, le discours de la loi n’a pas de destinataire et il est considéré comme un discours à vocation universelle. Enfin, le discours de la loi est un discours qui s’impose à tous: il comporte, ainsi, une forme de performativité. Pour illustrer les questions théoriques et méthodologiques abordées dans cet article, on étudiera le texte d’une loi récemment promulguée en France, la loi n° 2013–316 du 16 avril 2013 relative à l’indépendance de l’expertise en matière de santé et d’environnement et à la protection des lanceurs d’alerte.

This paper sets out to examine the way in which legal reasoning constructed marital rape and eventually officially recognized it after centuries of men’s ascendency over women. Understanding the multiple layers requires cultural and historical awareness of the traditional concept of “marriage” and the practice of religion as well as the very different conditions in which marital rape was envisaged. The main contention of this paper is to show that legal knowledge derives from a patriarchal tradition where the processing of marital abuse and rape hovered between cultural and subjective realities contrary to objective rationality.

As Hong Kong is the only common law jurisdiction operating in Chinese, alongside English, writing a common law judgment in Chinese is like exploring an uncharted domain in legal discourse. Apart from those judgments originally written in Chinese, Chinese judgments have also been prepared by way of translation from English. Besides, there are also English translations of Chinese judgments of jurisprudential value. Judgments in Hong Kong therefore present an interesting case for study both from a legal point of view and from the perspective of discourse analysis. As Chinese judgments in Hong Kong to a large extent mirror images of their English counterparts, they provide us with insights into how judicial thinking embodied in one language is carried over to another. As the translation of court judgments can serve as a clue to the understanding of how judicial thinking is transferred and reflected in another language, this study looks into some of the fundamental problems of legal translation in general and translation of court judgments in particular, showing how the sociosemiotic approach can shed light on those problems.

A feature of the modern consumer economy is the so-called “standard form contract,” printed in advance to establish the terms on which a corporate supplier deals with its customers. Typically these terms include an “exemption clause,” seeking to limit the supplier’s liability for loss or damage, and often to exclude legal liability altogether. Sometimes such clauses are given effect according to their apparent intention, but in other cases judges may endeavor to avoid that result – either by denying the clause any legal effect whatsoever, or by reading it so as not to apply to the precise kind of liability that has in fact arisen. We illustrate these varied responses by reference to judicial decisions in England, Australia, and India. The analysis suggests different expectations within these different judicial discourse communities: in England, from 1980 onwards, the renewed ideological emphasis on freedom of contract led judges to retreat from the creative solutions of earlier decades, returning to an emphasis on the actual words of such clauses; in Australia, in contrast, judges declined to take part in such a retreat; in India, a prevailing insistence on the need to interpret contracts strictly according to their literal terms has failed to prevent occasional attempts at ingenious interpretive solutions.

I present a tool of interpretation that can be applied to legal texts. The tool is intended for people who wish to make sure that they thoroughly understand a certain text – including the meanings hidden between its lines in general, and in particular for legal laypersons who wish to make sure that they thoroughly understand a legal text. I have developed this tool of interpretation from the relevance-theoretic communicative principle of relevance; I will show that the tool supplies a general method of demonstrating that certain meanings (including meta-forms, implications, and socio-semiotic meanings) are hidden in a communicated text. According to relevance theory, the interpretation accepted by the addressees of a spoken utterance reconstructs the speaker’s meaning; the tool of interpretation enables other recipients of the utterance’s text to identify the addressee’s interpretation. This tool consists of three conditions that function as a criterion of correctness of interpretations in the following sense: if an interpretation meets the three conditions then it is the addressee’s interpretation – the interpretation that reconstructs the meanings the text’s producer intended to convey, whether these meanings were presented explicitly or not.

The discursive use of language in legal contexts is multifaceted and complex. First, it begins with the chain of oral narrative structures (victim, witness, suspect accounts) and written texts (confessions, notes, depositions, letters, Internet documents, email, tweets, telephone records) used in a court of law. The transcription of oral communiqués is a potentially transformative phase of evidence production that may be flawed (ambiguity, error, mistakes, gaps, misrepresentation). Second, it includes or/excludes the textual and narrative representation of nonverbal communication (kinesics, paralanguage, proxemics) and how it is recorded (transcripts, graphics, video, enactments). At each stage of the legal process, interpretation of narrative structures and texts plays a key role in the ultimate meaning of verbal and nonverbal communication. Third, it concerns interrogation strategies and tactics in preliminary evidence gathering as well as in the courtroom. Fourth, it involves translation of documents written in another language or interpretation of oral statements in another language to the language of the courtroom.

Throughout a police interrogation, the identities of police interrogators and suspects are not fixed as simple questioners and answerers, but are dynamic with the changing communicative purposes in an interrogation process. At the opening and closing stages, the identities of interrogators are largely those of spokespeople and attentive listeners. At the information gathering stage, while the suspects are expected to ideally assume three simultaneous identities of animator, author, and principal, the identities of interrogators are more complicated when the interrogators attempt to construct an ideal interrogation pattern with an aim to show the voluntary nature of the suspect’s confession. The identities the police interrogators attempt to construct include an institutional representative, a responsible professional, a fact verifier/lie detector, and a dominant professional. The shifting identities and positionalities of police interrogators and suspects are part of a delicate dance in an interrogation process, which will determine the effectiveness of an interrogation. The identity construction process this paper describes helps create patterns of interaction. The paper argues that the police’s keen awareness of their identity construction in the interrogation will facilitate the achievement of their intended interrogative purposes.

In the shadow of the United Nations Declaration on the Rights of Indigenous Peoples, adopted and endorsed by 143 nations on 17th September 2007, the then Howard Government suspended the Racial Discrimination Act in Australia to implement the Northern Territory Emergency Response Bill, commonly referred to as the Northern Territory intervention. This legislation included the compulsory acquisition of townships; the suspension of the permit system to access Aboriginal communities; the removal of customary law or cultural practices in any legal considerations in sentencing; the abolition of the Community Development Employment Projects; and the quarantining of a proportion of welfare benefits for all recipients in designated communities. While Australia was one of only four nations who did not endorse the Declaration in 2007, the UN Declaration was subsequently adopted and endorsed in April 2009 by the then Rudd Labor Government. The ratification of the UN Declaration may appear to reflect a change of policy, yet amidst significant Indigenous opposition and criticism of the United Nations, the Gillard Labor Government continued the central tenants of the NT Intervention for a further ten years in the form of the Stronger Futures legislation in 2012. This essay explores some of the tensions and contradictions inherent within legal and political discourse in the recognition of rights between the rights of the child on the one hand, and Indigenous rights and citizenship rights within the Northern Territory Intervention legislation and policy of Stronger Futures in the Northern Territory.

Whenever necessary, legal professionals expand or restrict the semantic domain of legal terms to justify their reasoning or ruling. The semantic domain expands or contracts in size depending on the different approaches towards interpretations adopted by legal professionals. This research illustrates the interpretations of judges and prosecutors of legal terms with empirical cases and court opinions. In the field of Criminal Law, the semantic domain often leads to the domain of criminal culpability and punishment. The shift in the semantic domain of legal terms matters a great deal to all of the stakeholders in a case. When the domain grows too broad, it will criminalize citizens beyond the intention of the Legislature. When the domain shrinks too much, the victims will not receive justice. Therefore, legal professionals have to be exceedingly modest and cautious when playing their roles as law interpreters.

In my paper, I will study the case law of the European Court of Human Rights by using discourse analysis as a method. My hypothesis is that the court has changed its line concerning the right to a fair trial (in article 6 of the European Convention for Human Rights) over the last twenty years. Earlier, it always defended the rights of the accused and the authorities’ problems, for instance, in fact gathering, were recessive. The same covered the rights of the witnesses even if the court usually confessed that also the witness has their rights, which should be respected. It also stressed that authorities of course have difficulties with proof – for example – the offences that are connected with the organized crime. Still, the rights of defense were always number one and inviolate. During recent years, the line seems to have changed even if the court has not transparently said so. However, it has given some new precedents by the Grand Chamber where the rights of the defense have been limited more than before; for instance, the cases Jalloh v. Germany (11 July 2006), Gäfgen v. Germany (1 June 2010), and Al-Khawaja and Tahery v. Great Britain (15 December 2011). The expressions used in case law show that the way of thinking has changed as well. Still, the changes are sometimes more hidden than transparent where discourse analysis is the only tool for catching the changes and showing differences in the thinking of the court.

This paper explores some key topics in the semiotics of law − and the paradoxes related to legality, legitimacy, and interpretation − through a chapter in the history of British radicalism that unfolds around the Treason Trials of 1794. These trials, I argue, staged a wholesale battle around the very nature of the sign. The peculiarities of British treason law and the prosecution’s “constructive” readings made treason wholly into a crime of the sign, framing all of radical culture as criminal and conspiratorial. I argue this by showing how legal meaning, along with guilt and innocence, was negotiated in relation to (1) context, and particularly the French Revolution; (2) the performativity of signs, and most crucially, their capacity for disrupting the status quo; and (3) the dynamic nature of semiosis, whereby historical process and political change cannot be halted or controlled. In the Treason Trials, these concepts are alternately invoked and denied as frames for viewing “factual” evidence and establishing its meanings along partisan lines. Finally, this paper would like to suggest that the legal narratives produced in 1794 can generate insights into discursive strategies still used today to create “facts” and “truths,” shape popular opinion, and justify government interventions.

In “What is Marriage?” (2010), Girgis et al. explain how the legal redefinition of the traditional meaning of marriage would erode not only the institution, but also the common good. More importantly, they argue that there are principled reasons why the law should distinguish conjugal and revisionist conceptions of unions and retain the conjugal meaning of “marriage.” However their arguments I argue are problematic. Retrieving their insights, I develop a different argument on behalf of their case. By examining phenomenologically the dynamism of the life-world of relationships under the “conjugal” and the “revisionist” conceptions of marriage, rather than the physics of coitus and same sex activity, I argue that there is a distinct difference between the two types of unions. Also, conjugal unions matures us so that we can become other-caring persons, with civilizing effects that trickle outwards into the community from the core of a conjugal family unit. I conclude that the law should retain the traditional meaning of “marriage” to include only conjugal unions, in order to point to these instead of others, with the social and civilizing benefits these unions entail when young men and women aspire to and attain these.

Focusing on the legal dispute over the crime of whoring with an underage girl, the present study explores why many Chinese appeal to abolish the legal statute on the crime of whoring with an underage girl from a sociosemiotic perspective. The authors argue that the legislation of this legal statute neglects that the Chinese social system, including social customs and conventions, could also influence Chinese social semiotic systems. This legal dispute originates from the lack of an overview of the Chinese social, legal, and semiotic systems. By situating the dispute in the Chinese historical and cultural settings, the authors reveal why it is unreasonable to promulgate this legal statute. By situating the dispute in the Chinese and world legal settings, the authors further reveal the causal factors of this dispute: (1) labeling underage schoolgirls as prostitutes; (2) classifying statutory rape as crimes in prostitution; (3) the potential legal contradiction between the crime of rape and the crime of whoring with underage girl; (4) aiming to punish the perpetrator more severely and safeguard the underage girl more effectively, but giving rise to more similar crimes and doing more psychological harm to the underage girl by using language violence in reality. Therefore, the authors suggest that it be necessary to amend or modify, and to systematize some relevant legal provisions on sex offences against minors timely according to the social, linguistic, and legal realities.

Aging is a theme that has interested philosophers, sociologists, anthropologists, educators, and scientists from several fields, including linguistics and semiotics, in which we have been developing our works and to which we hope to contribute with this article. In our text, especially dedicated to analyzing the (hidden) meanings underlying legal discourses to protect the elderly, we link our reflection to concepts developed in the sphere of semiotics and semioethics, with special reference to works by Susan Petrilli and Augusto Ponzio, strongly influenced, in turn, by authors such as Mikhail Bakhtin. Concerning legal discourse, we have chosen to concentrate on the topic related to violence, which reveals the very sad reality of how society treats their elders, which demands the existence of specific laws. We also base our discussion on data provided by Brazilian institutions such as IBGE and refer to the Brazilian Constitution and national policies especially written for the elderly, as well as on the reflections of Brazilian authors who have dedicated their lives to this field of study.

Modality and negation, as two important linguistic features used to realise subjectivity, have been investigated within various disciplines, such as logic, linguistics and philosophy, and law. The interaction between modality and negation, as a relatively new and undeveloped domain, has however not been paid due attention in scholarship. This corpus-based study investigates three aspects of their interaction: the differentiation of the deontic value by negation, the categorization of deontic modality in Hong Kong legislation via negation, and distribution patterns of deontic modality, especially distribution patterns of the negation of modality, in Hong Kong legislation. This study shows that negation is a powerful linguistic mechanism not only for determining the nature and functions of modality, but also for determining the value of modality. This study also reveals that negation helps us to investigate the distribution of deontic modality in Hong Kong legislation and hence revisit the legal framework in Hong Kong. A study taking into account the discursive and professional aspects of the interaction between deontic modality and negation will provide a theoretical basis for the natural language processing of modality and negation in legislation and also offer important implications for the study of negation and modality in general contexts.

The words “religion” and “religious” are deeply influenced by cultural and social context. The word “religion” could mean to the ears of a North American a social phenomenon that a South American doesn’t consider such. The same thing can happen in a dialogue between an Asian and an European. In fact, in contemporary society, the word “religion” has many meanings, not always understandable, sometimes hidden. The same goes for the adjective “religious.” What do I mean when I define a place, a behavior, a building, a person with the adjective “Religious”? Can I really be sure that what for me is “religious” is so for the man talking to me as well? Do my culture, education, and family traditions lead me to consider as “Religious” something that for other people is not so? Such questions are particularly relevant if we think about the value that many legal systems attribute to “Religion” and “Religious.” The words “religion” and “religious” have hidden meanings that only knowledge of a given culture and tradition may help to unravel. These hidden meanings are often important in legal discourse, especially in case law; which is why it is necessary to reveal them.

The paper analyzes the problem of the contemporary societies, characterized by the permanent presence of people belonging to different faiths and the culture. The relationship between law and culture, law and religion, in particular the Christian religion, in the history of western culture, are the focus of the paper. In this way, the paper analyzes the importance of the interdisciplinary approach to this problem, emphasizing the importance of a dialogue between juridical science and semiotics, and the importance of the use of metaphor as a strategy for building an intercultural legal system. This approach at juridical studies allows one to stem the crisis of the “modern” legal system. It is necessary to recovering the authentic sense of generalizations and abstractions of modern law, to create a society based on dialogue between law, culture, and religion, and to go beyond the logic of multiculturalism. To do this, is necessary to realize that words such as freedom, equality, dignity, and autonomy are communication code-words with extraordinary symbolic and political value. To do this, we will need to combine the work of interpretation of the law with that of intercultural translation.

About a quarter of legal jurisdictions in the world operate in more than one language. Despite this, language policies governing the functioning of law in such jurisdictions, other than in the European Union, rarely receive much attention in research. Given, however, that the policy contrast between legal monolingualism and multilingualism is often a matter of strategic response to the rising or declining power of one or more particular language communities, the conferring of legal authority on some language(s) but not others calls for analysis. Advocacy and justification surrounding potential or actual change of legal language, for example, consists of competing rhetorics advanced by politicians, legal professionals, and campaign groups, and to this extent politics permeates both the promotion and presentation of legal multilingualism, despite reluctance among legal policy makers to engage directly with this aspect of the process. This article situates legal multilingualism within a wider understanding of multilingualism and language policy. It first surveys status labels assigned to languages in multilingual jurisdictions. It then compares, across jurisdictions, rhetorical strategies deployed in promoting and opposing specific proposals about language status, in both official and public discourses, and analyses contradictions and dilemmas embedded in them. The argument extends [Rhetoric as jurisprudence: An introduction to the politics of legal language. Oxford Journal of Legal Studies 4(1). 88–122] observation that legal discourse is pre-eminently a discourse of power. But if use of legal language is political, it is suggested, then the processes of negotiation which establish a language for such use are even more so.

Court conciliation conducted by judges in Chinese courts is often seen in a positive light as resolving civil disputes efficiently. However, it is sometimes also severely criticized for judges’ malpractice in pressing parties to settle by revealing adjudication results. Sadly, except for mere criticism against this kind of phenomenon and abstract provisions on forbidding this kind of malpractice, little has been done to provide a detailed description of what it is and how to avoid it. This paper, based on authentic conciliation data and an interview with two judges, intends to conduct a linguistic analysis of the above problem. This paper argues that, while in theory legal discourse should be explicit, judges in court conciliation need to bury their attitudes in words when it comes to the rendering of attitudes and suggestions. This paper first analyzes the dilemma concerning how much pressure to be imposed upon which party, and then analyzes linguistic features of judges’ coercive and persuasive conciliation styles, and finally offers suggestions as to the linguistic shift of conciliation style from coercion to persuasion. This paper concludes that such malpractice as coercing parties to settle may be linguistically avoided when judges learn to bury their attitudes in words and leave parties to make voluntary choices.