Speech acts in legal language: introduction

2020

Reconsideration of legal phenomena by legal language means is a typical feature of analytical tradition in the legal philosophy, since legal regulations are expressed not only in language, but are inextricably linked with the linguistic content of rules whilst applying them. Language as a form of communication and representation of the world is a holistic and specific phenomenon, that is localized in speech acts that form subject's intentions and his further actions. It is necessary to count the meaningful use of signs for the reality perception, that form the language. Legal reality and its language forms are inseparable, and thus, we can learn more deeply the essence of legal phenomena by interpreting legal texts and speech acts that illustrate legal intentions and actions. So in the speech acts theory of J.L. Austin introduces the category of com missives , denoting the obligations declared by the intentions of the person (promise, agree, intend, plan, provide, allow, swear, etc.). In legal language speech acts are used with the purposes of execution, prohibition, coercion for maintenance of a social order, therefore legal discourse has performative character. Performative expressions in legal language are characterized by speech stereotypes due to repetitive procedures (for example, procedural actions in criminal proceedings or court hearings). If it is a question of acts of application of the right, from the point of view of their performative form they have declarative character, that is contain instructions and obligations of legal character. The illocutionary function of these proposals is to form a respectful attitude to the established norms, and the perlocutive force is to impose compliance with these norms. The question of the relation of speech acts and actions in a different context was considered by Gilbert Ryle.

2009

Speech Act Theory has proved useful for classifying utterances, because of its seemingly universal application; on the other hand, legal theorists are interested in speech acts for several reasons, the most important being the fact that the theory helps to explain how the law uses language. In legal language there is a large number of speech acts, and most of them fall under the category of performatives: these do not report about doing something, their utterance actually constitutes performing an action. Because performatives are actions, they cannot be considered to be either true or false but only “felicitous” or “infelicitous". Laws could be considered as types of speech acts, as well as contracts and wills. We can say that in, a very general way, speech act theory is helpful because it permits us to understand legal events from a new perspective: in this paper my attempt is to show that a difference exists between "doing something with words" and "doing some...

Proceedings of the Institute of State and Law of the RAS, 2020

Reconsideration of legal phenomena by legal language means is a typical feature of analytical tradition in the legal philosophy, since legal regulations are expressed not only in language, but are inextricably linked with the linguistic content of rules whilst applying them. Language as a form of communication and representation of the world is a holistic and specific phenomenon, that is localized in speech acts that form subject’s intentions and his further actions. It is necessary to count the meaningful use of signs for the reality perception, that form the language. Legal reality and its language forms are inseparable, and thus, we can learn more deeply the essence of legal phenomena by interpreting legal texts and speech acts that illustrate legal intentions and actions. So in the speech acts theory of J.L. Austin introduces the category of com missives, denoting the obligations declared by the intentions of the person (promise, agree, intend, plan, provide, allow, swear, etc.)...

2007

According to the theory of speech acts, speech is a kind of action. He, who says something, does something. Certainly, when a judge or a court makes a decision, he or it says something. 1 He performs some (locutionary) acts like uttering or writing some sentences. 2 However, there is something further he does, namely, by uttering or writing some sentences in the appropriate context, he makes a judicial decision. By a judicial decision I mean an act by a judge adjudicating a case according to the law, with the authority that the state and the legal system confer on him. In a judicial decision the judge says something about the law, the facts of the case, and the consequences that the legal system imputes to the parties, in the most cases, the plaintiff or the prosecutor and the defendant. How does the judge saying the things he does bring it about that he has adjudicated a case? More specifically, what kind of speech acts, or more precisely, illocutionary acts, 3 does he perform, and what is their relation to the adjudication? As these questions indicate, the aim of this paper is to give an account of judicial decisions from the point of view of the theory of speech acts. This account can contribute to

SSRN Electronic Journal, 2013

The speech-act approach to rules is commonplace in both Anglo-American and continental traditions of legal philosophy. Despite its pervasiveness, I argue in this paper that the approach is misguided and therefore intrinsically flawed. My critique identifies how speech-act theory provides an inadequate theoretical framework for the analysis of written discourse, a case in point being legal text. Two main misconceptions resulting from this misguided approach are the fallacy of synchronicity and the fallacy of a-discursivity. The former consists of treating legal rules as if they were uttered and received in the same context, the latter consists of treating legal rules as relatively short, isolated sentences. Among the consequences of these fallacies are an excessive focus on the lawmakers' semantic intentions and the neglect of the semantic and pragmatic complexity of rules as sets of utterances (discourses). To redress these flaws, I propose analysing legal rules through the prism of complex text-acts. My paper presents the consequences of this revised approach for legal interpretation, supporting Joseph Raz's idea of minimal legislative intent.

Journal of International Legal Communication

The paper discusses law as a linguistic phenomenon by focusing on the performative function of legal language. In the introduction the notion of language, as well as the variety of its possible functions are explained by referring to the theories of such scholars as Roman Jakobson and John Langshaw Austin. The introduction is concluded with a very brief presentation of legal language characteristics and the way it can be perceived as a performative speech act. Subsequently, materials and methods used in the course of this analysis are listed. The study focuses mainly on real life examples of utterances expressed during chosen adoption hearings in American courts. The specific communicative situations have been chosen due to their complex emotional and legal character as an example to illustrate how certain seemingly identical statements may be of completely different functions. After the examples are compared and discussed, authors’ conclusions are presented and the initially posed ...

Despite the pervasiveness of the speech-act approach, it is argued in this paper that the approach is misguided and therefore intrinsically flawed.My critique identifies how speech-act theory provides an inadequate theoretical framework for the analysis of written legal discourse. Two main misconceptions resulting from this misguided approach: the fallacy of synchronicity and the fallacy of a-discursivity. The former consists of treating legal rules as if they were uttered and received in the same context, the latter consists of treating legal rules as relatively short, isolated sentences. Among the consequences of these fallacies are an excessive focus on a lawmakers' s semantic intentions and the neglect of the semantic and pragmatic complexity of rules as sets of utterances (a discourse).To redress these flaws, treating legal rules as complex text acts is proposed . This study presents the consequences of this revised approach for legal interpretation relying on Joseph Raz's idea of minimal legislative intent.

Semantics and Beyond

Illocutionary speech acts such as assertion are subject to norms. In this paper I describe how we might explain the normativity of such speech acts, focusing on the case of assertion itself. In the introduction I clarify what is at issue: we are concerned not with whether speech acts are essentially conventional, but with whether they are constitutively governed by norms; I am sympathetic to the view that they are, and wish to explain how this could be the case. Next, I suggest that one kind of attempt to explain the normativity of assertion by appeal to a reductive view of its essence fails; and I sketch my own preferred explanation of this normativity which treats assertion as an irreducible kind. Then, in the final section, I show how the account I favour grounds the normativity of speech acts and their essences in more basic facts in a manner that is naturalistically acceptable – provided that the piecemeal conception of philosophical naturalism articulated there is correct.

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique, 2020

The subject of interest of this article is procedural acts considered as double-conventionalized acts. It is assumed in this article that in the case of procedural acts, one can distinguish two levels of conventionalization: (1) the level of a speech act and (2) the level of a procedural act. Both above-mentioned levels affect each other in various ways, what is discussed in the article. As assumed in the article, the analysis of acts characterized by this particular trait (double conventionalization) and with due account of this trait allows one to observe phenomena that can be hard or even impossible to notice in the process of analyzing acts that are deprived of this trait. Furthermore, it seems that the description of this type of acts may particularly enrich the current discussion on some properties of speech acts held on the grounds of philosophy of language or pragmalinguistics. The research material used in this article as an illustration consists of actual utterances of par...

Law as a regulator of the conduct of social subjects cannot be directly equated with other methods of controlling the behavior in society. The grounds of legally significant actions allow determination of the context of the application of legal rules. The meaning of each legal term, as argued by L. Wittgenstein, depends on its " context of use " and the conventions of use at the moment. Therefore, the interpretation of the rules cannot be based solely on the principles of logic and be completely neutral. On the one hand, " we follow the rule blindly " , but at the same time, the repeatability of the behavior of other people and the ability to observe their behavior (by analogy with the mathematical concepts of addition and sum) encourage " learning " the rules and acting in accordance with the rules. The ascription of the legal language and the " imputation " principle of the legal interpretation of facts allow defining a key concept that cannot exist beyond the constructed social reality. The attempts to analyze non-legal factors appeal not to legal arguments but to other phenomena. The legal term in its nature not only describes empirical facts but also encourages action. The most dismal example of a change in philosophical argumentation and legal reasoning in the philosophy of law is the influence of Quine's arguments. In the context of the methodology of legal explanation, the naturalization of the epistemology of law is possible only when the limitations and specifics of traditional methods of interpretation of legal reality are considered. The article focuses on the analysis of some arguments made by the analytical legal philosophers regarding the linguistic content of legal rules with no reference to any social determination or formulation of the significant judgments about the linguistic nature of legal reality.