30.4584, Review: Applied Linguistics: Visconti (2018)

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Subject: 30.4584, Review: Applied Linguistics: Visconti (2018)

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Date: Mon, 02 Dec 2019 21:42:13
From: Lelija Socanac [lelijasocanac at gmail.com]
Subject: Handbook of Communication in the Legal Sphere

 
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Book announced at http://linguistlist.org/issues/30/30-561.html

EDITOR: Jacqueline  Visconti
TITLE: Handbook of Communication in the Legal Sphere
SERIES TITLE: Handbooks of Applied Linguistics [HAL] 14
PUBLISHER: De Gruyter Mouton
YEAR: 2018

REVIEWER: Lelija Socanac, University of Zagreb

SUMMARY

The study of legal communication has become a striving interdisciplinary field
over the past fifty years. Communication in the realms of law and
administration of justice is a complex phenomenon, facing problems presented
by globalization, migration and multilingualism, and involving equality issues
in access to justice in complex, multicultural societies.

The obscurity of legal language has been criticized in most legal traditions.
An impulse towards improving transparency has been provided by numerous plain
language movements. Another important topic is the reconstruction of meaning
of legal texts:  interpretation is a complex operation, involving issues of
linguistic, situational, inter-textual, cognitive, cultural and ideological
nature.

The handbook addresses many other important topics at the interface of
language and law such as language policy and planning, forensic linguistics,
and questions of ideology and power in the courtroom. In addition, the
handbook presents different international legal settings.

The book is divided into four parts covering different aspects of legal
communication. Each part consists of five chapters, with the exception of Part
III, containing three chapters.

Part I: “The foundations of legal language” begins with Chapter 1: “Legal
drafting” by Christopher Williams who defines legal drafting as writing texts
which are legally binding and future oriented. Such texts may be enforced by a
controlling authority, e.g. by a court of law. Some of the key features of
legal drafting are analyzed, and legislative drafting is compared to contract
drafting. The author points out some similarities and differences in drafting
techniques in the common law and civil law systems. Thus, in the common law
system both contracts and legislation tend to be far wordier than their civil
law counterparts. The influence of plain language movements on legal drafting
is also discussed. Possible developments for the future of legal drafting are
outlined, with special reference to the impact of information technology.

Chapter 2: “The interpretation of laws” by Lawrence M. Solan introduces some
problems of legal interpretation which arise because of the vagueness or
ambiguity in law. The tension between the literal and purposive approaches is
analyzed in detail. Much of the debate on statutory interpretation can be seen
as a struggle between a rule-based approach, in which the ordinary meaning of
a law’s words and a limited number of canons of construction are considered
sufficient to determine a statute’s meaning, and a more eclectic approach, in
which the statutory interpreter considers information specific to the
enactment of the legislation, including reference to its purpose, which is
found by examining the circumstances underlying its enactment. The purposive
approach is standard procedure in civil law jurisdictions, which favor
teleological inquiry, while a literal approach is preferred in common law
systems. The chapter tries to describe which aspects of our linguistic
capacity are most in tune with the values of a legal system, and where the
goals of the legal system and language work at cross-purposes. 

Chapter 3: “Language rights” by Janny HC Leung describes the historical,
political and legal context of language rights, outlines relevant
international and national human rights instruments, and examines the
theoretical foundations and definitions involved in the language rights
paradigm. She goes on to offer a detailed critique and to outline challenges
facing the field. Language rights are often concerned with linguistic
minorities, and minority languages are defined in opposition to the official
language. A national language is usually a standardized variety with a written
form and formal register which is suitable for official use. As the language
of public life, competence in that language is a prerequisite for civil
participation, access to resources, and upward social mobility. Other,
co-existing languages are “minoritized” and often come to be seen as a threat
to national unity. Globalization is a further source of pressure on minority
languages, since the participation in the global economy requires the adoption
of an international language. Minority language rights usually include
educational rights and language use in other public domains such as the media
and the courtroom. On the other hand, the question of the protection of
dialects and immigrant languages largely remains open.

In Chapter 4: “Language planning and legal systems” Richard Powell reviews
language planning as both an administrative practice and an object of academic
analysis. He considers the conceptual implications for administrators and
researchers of applying language planning to the law. Language planning in
legal domains draws on at least three bodies of research: 1. descriptions of
legalese and the sociology of legal language, 2. studies of legal translation
and interpreting, and 3. analyses of bilingual communication. Changing the
language of law has an important impact on the practice of law, which explains
conservatism in the legal domain. Legal translation and interpreting aim to
enable the language-disadvantaged to participate in monolingual legal systems.
As to bilingual legal communication, code-mixing, code-switching and
code-shifting can be found in legal discourse in some post-colonial settings.
An account is provided of language planning implementation through status
reform, corpus reform and acquisition planning. Planning should proceed
cautiously, with periods of bilingualism bridging the older and newer legal
media and registers.

Chapter 5: “Semantic processing of legal texts” by Tommaso Agnoloni and Giulia
Venturi combines views and perspectives from computational linguistics and
Artificial Intelligence. The goal of applying Artificial Intelligence methods
to the legal domain is to teach computers how to reason with legal rules, how
to perform legal interpretation by making explicit the content implicitly
contained in legal documents, how to argue like an advocate, etc. The main
challenge consists in finding a way to connect the computational models to
tasks that lawyers perform and texts they use. Another challenge is that the
legal content is tightly intertwined with common sense and knowledge of the
world. In the legal domain the meaning is not intrinsically tied to a word
itself but it stems from its specific use within the legal sublanguage. In
addition, law simultaneously describes the events and regulates them.
Moreover, a significant part of the knowledge conveyed by a legal document is
only implicitly lexicalized. In addition, law is often expressed as a network
of documents referring to each other through legal citations. Since law is
strictly dependent on its own textual (linguistic) realization, modeling legal
semantics should take into account a combination of both theoretical modeling
and text analysis. 

Part II: “Forensic linguistics and court setting”

Chapter 6: “Implicit legal norms” by Barbara Pasa and Lucia Morra proposes a
functional taxonomy, showing how different types of implicit legal norms can
be identified building on previous studies on cryptotypes and implicatures .
The cryptotype is the underlying pattern to be revealed by logical or
non-logical inferences from an explicit rule. Implicit patterns played a
fundamental role in the law of so-called “primitive societies” where the law
was unformulated, sources were implicit, acts were unspoken and the dichotomy
between law and enforcement did not exist. From a methodological point of
view, the analysis combines a functionalist approach, which emphasizes
law-as-rules, with a hermeneutic approach in which rules and concepts are the
signifiers of deeper cognitive structures, so that one may find the meaning of
law outside the legal texts. To understand law, we must address the issues of
multiple forms of legal communication which involve various social ordering
situations (e.g. adjudication, legislation), actors (individuals, collective
agents) and forms of justification (legal rules, precedents, customary
practices, equity). The sense of the words in a legal message is bound up with
the matrix of social relations through which they are generated. The research
questions are whether it is possible to identify tacit rules that underlie and
control social life in different legal communities and whether it is possible
to understand how much they interfere with legal interpretation. As
interpreters of the law, judges and lawyers cannot ignore the fact that a
legal text will imply more than it says. The empirical cases focus on gender
discrimination analyzed in a comparative perspective. Revealing the implicit
information underlying legal provisions can help in tracing the way in which
social and individual values contribute to the meaning given to legal texts in
adjudication.

Chapter 7:” Authorship attribution analysis” by Sabine Ehrhardt provides a
broad overview of the field, including the notion of idiolect as the basic
assumption, the scope of forensic linguistic analyses, and the specific tasks
that are requested by mandating parties or authorities. The author discusses
the methods of authorship analysis, including qualitative, quantitative and
automatic approaches. The objective of authorship profiling is the
categorization of an author with respect to social influences and biographical
aspects, the evaluation of author intentions and aims, and the assessment of
circumstances under which a text was produced.  In contrast to authorship
profiling, text comparisons require at least two text samples for analysis.
For the evaluation of findings, it is important to be aware of three relevant
dichotomies: 1) consistency and distinctiveness, 2) intra-author variation and
inter-author variation, 3) similarity and typicality. 

Chapter 8: “Topic management in police-suspect interviewing” by Georgina
Heydon provides an overview of linguistic contributions to the field. The
planning and structuring of a police interview is a complex task where
chronology must be combined with a division of evidence/intelligence. Because
of the complexity of the interview structure, and the inclusion of two types
of subject matter: direct evidence and indirect information or intelligence,
police investigators have to find a way to manage various topics.  Choosing
the right strategy when changing the topic can have a dramatic impact on the
rapport between participants, affect the capacity of interviewees to volunteer
reliable information, and affect the admissibility of evidence. Three main
features of police interviews are discussed: voluntariness, narrative
accounts, and the right to silence. Each feature is analyzed using methods of
Conversation Analysis, including turn-taking structures, preference, and topic
management. As opposed to ordinary conversation where anyone can initiate a
new adjacency pair, in an institutional interview only the professional party
has access to initiations, which results from unequal power relations. 

Chapter 9: “Forensic voice comparison” by Michael Jessen explains the general
principles of forensic voice comparison, focusing on the notions of
speaker-discriminatory power, intra- vs. inter-individual variation,
similarity and typicality, multi-dimensionality and (in)dependence of
different speaker-discriminatory features. The auditory-acoustic approach is
distinguished from automatic and semi-automatic approaches.

Chapter 10: “Narrative practices and voice in court” by Chris Heffer discusses
forensic narrative in the context of legal communication. Understanding
forensic narrative helps us to understand better both the nature of the legal
process and the nature of narrative. Since legal cases concern disputed
stories of wrongdoing, narrative remains highly significant to the legal
process in general and the trial context in particular. However, the
institutional and evidential complexity of a trial, along with its
anti-narrative legal constraints, challenge our literary- ad
conversation-based conceptions of narrative. Two models of narrative
navigation and voice projection are introduced showing how they are relevant
to an analysis of narrative focusing on inequality and loss of voice at trial.

Part III: “Legal language outside of court”

Chapter 11: “Linguistic analysis in trade mark law: current approaches and new
challenges” by Alan Durant and Jennifer Davis begins with a summary of the
main legal measures governing trade-marks, taking European Union trade mark
law as its main point of reference and introducing US law where appropriate.
Although international conventions set rules and minimum standards for
registered trade mark protection, the protection is almost exclusively
national in scope. The authors describe how courts address language-related
questions and analyze to what extent the understanding of communication in
trademark law is compatible with accounts developed in linguistics. They
examine an applied linguistic tradition of expert evidence and an
interdisciplinary tradition aiming to understand trade marks in semiotic
terms, as well as some “intermediate” studies which use linguistic scholarship
to support arguments for changes in the law. Finally, they consider how
linguistic contributions to trademark law might develop through further
collaboration between lawyers and linguists. 

Chapter 12: “Defamation, language and linguistics” by Roger W. Shuy provides
definitions of defamation in US law, noting certain differences that apply in
European jurisdictions.  The author describes how American defamation laws
developed over time, and provides an overview of the theory and tools used by
linguists whose assistance is called upon by lawyers in defamation cases.
These linguistic tools can be found in pragmatics, speech act theory,
grammatical referencing, discourse framing, analysis of malicious language and
analysis of conveyed meaning (e.g. innuendo). Six actual US defamation cases
are analyzed. Such lawsuits illustrate how the felicity conditions of speech
acts such as accusing, reporting, requesting, and apologizing, can provide
evidence for determining whether or not defamation can be proved. 

Chapter 13: “Future directions in law and popular culture: a British
perspective” by Peter Robson discusses the nature of the link between the
narrative structure of the courtroom discourse and the film, which can have
important implications for legal practice. The topics discussed include legal
scholarship and education, law and literature, law and film, and law and TV.
The author’s goals are to examine law and popular culture as part of a mission
to explore how law affects people in their daily lives and to illuminate the
study of law and justice using popular culture as an accessible tool to
achieve this end. It is instructive to assess whether or not the version of
law and justice which is encountered in popular culture is supportive of the
status quo, or contains a critique of the institutions and their working
practices. 

Part IV: “International legal settings”

Chapter 14: “Multilingual interpretation of European Union law” by Silvia
Ferreri focuses on the case law of the Court of Justice of the EU where
purposive interpretation is most often adopted. Advantages and disadvantages
of the EU multilingual policy are discussed, as well as the consequences of
considering all linguistic versions of EU legislation as equally authentic.
The Court of Justice of the EU has stated that expressions used in European
legislation have an independent meaning from that assigned to similar phrases
in national law. When facing problems of interpretation, the concern is to
safeguard the validity of EU acts whenever possible. At the national level,
the parliament can correct a rule that has proved to be defective when
implemented and submitted to judicial review. Given the complex and
time-consuming process by which EU legislative acts are approved, interpreters
try to reconcile differences between several language versions rather than
accepting that the legislation is too vague to be implemented.

Chapter 15: “Contemporary Chinese law: a linguistic perspective” by Marina
Timoteo discusses legal transplants resulting from modernization of Chinese
law. Since modern Chinese legal language is largely a result of translation,
the first step in understanding it is understanding legal translation, mainly
based on the creation of neologisms introduced into the legal language to
denote foreign legal concepts.  Legal transplants are closely connected to the
creation of new legal taxonomies, the process which started in the second half
of the XIX century.  Examples of the development of some key legal concepts
through different stages of the Chinese legal modernization are provided, with
legal uncertainty posing a major problem. The high percentage of polysemic
words which blurs distinctions between legal concepts and categories is one of
the features of uncertainty. A source of confusion at the phonetic level are
assonances occurring with terms that have a similar, but not identical,
pronunciation. An additional source of complexity is derived from the
contamination between civil law and common law models. This is compounded by
the renewed influence of legal language and taxonomies introduced during the
period of the Republic of China. Finally, issues under consideration include
the increasing influence of legal models from common law inserted into a
taxonomy traditionally based on civil law models; the coexistence of different
Chinese languages, the emergence of China as a global actor and the increasing
globalization of its legal system.

Chapter 16: “Unity and varieties of Arabic as a legal language: practices of
interpretation and translation” by Roberta Aluffi discusses legal Arabic as
the language of the Islamic legal doctrine and an international legal language
adopted by a number of international organizations. Literary Arabic includes
classical Arabic, rooted in the language of the Qur’an, and modern standard
Arabic which is used for written and oral formal communication. Arabic legal
terminology evolves spontaneously. Changes take place mostly at the national
level, since the state is the main source of legal rules. The linguistic drift
between national legal languages usually consists in the use of different
terms for the same meaning. Since legal Arabic is a multiform language,
translation of legal texts from and into Arabic is a multiform task.

Chapter 17: “Law, language and communication in the Indian context” by
Domenico Francavilla considers the complex multilingual situation in India,
constitutional rules concerning official languages, the use of English as the
language of the law and some issues concerning Hindi legal language. The
Indian Constitution adopted Hindi as the official language of the Union, and
English as a subsidiary language for official purposes. In addition, it
recognizes several regional languages and provides for official languages at
the State level. Although Hindi has gained in importance and is increasingly
used as the official language of the Union, English remains the main language
of legislation and of judgments. According to many authorities, the English
language and the common law are now part of Indian culture in all respects.

Chapter 18: “The many languages of Japanese legal language” by Andrea Ortolani
discusses the birth and evolution of Japanese legal language. The first wave
of reception of laws dates back to the eighth century, when Chinese
regulations were adopted in Japan, shaping its legal mentality. With the
modernization of the country in the 19th century, the source of inspiration
switched to the West as Japan started building its legal system following
European models. Modern Japanese law can be considered as a complex structure
made of multilingual and multicultural layers. Since Japan was the first East
Asian country to modernize its legal system and jurisprudence, neighboring
countries were eager to replicate its success and sent their students to the
archipelago to study law. Japanese neologisms thus spread into the region,
being adopted also in the modern Chinese legal language. In this way, the
Chinese characters used as components of the neologisms of the Japanese legal
science returned to the country that they left several centuries before,
bearing new meanings and new knowledge.

EVALUATION

The complex interrelations between language and law have been the topic of
many publications (Capone&Poggi 2016-2017; Coulthard&Johnson 2010;
Kurzon&Kryk-Kastovsky 2018; Solan&Tiersma 2012). The novelty of this handbook
is twofold: first, most of the contributions are written by lawyers, and
secondly, in addition to the Western legal traditions, a part of the handbook
is dedicated to international legal settings, including Arabic, Chinese,
Indian and Japanese legal language.

An extensive body of scholarly literature focuses on the search for universals
or the essence of law, while this collection demonstrates that law is highly
diverse. Rather than treating law as a body of doctrines, the studies in this
volume closely examine specific legal practices and social interactions
produced in national and international settings, using a variety of original
methods, models and arguments.  Although each chapter focuses on a particular
type and setting of legal communication, together they cover a wide range of
institutional procedures, geographical regions, and interactional practices.
The book addresses what actually happens in legal practice, allowing readers
to truly see legal communication at work.

The volume is very well organized and highly cohesive so that individual
chapters clearly contribute to each wider topic. It will be very valuable for
anyone interested in legal language and communication since it provides an
excellent overview of the field, and offers a collection of articles that are
interesting, informative, and well written.

Overall, this is a highly relevant, well researched and well-edited book which
will certainly inspire future research. It will be of interest to advanced
students of legal linguistics, researchers in language and law, 
jurilinguists, and anyone interested in the interface between language and
law, particularly communication in the legal sphere.

REFERENCES

Capone, Alessandro & Francesca Poggi (eds.). 2016-2017. Pragmatics and law:
philosophical perspectives. Berlin: Springer.

Coulthard, Malcolm & Alison Johnson (eds.) 2010. The Routledge handbook of
forensic linguistics. London: Routledge.

Kurzon, Denis & Barbara Kryk-Kastovsky (eds.) 2018. Legal pragmatics.
Amsterdam: John Benjamins.

Solan, Lawrence &Peter M. Tiersma (eds.) 2012. The Oxford handbook of language
and the law. Oxford: Oxford University Press.


ABOUT THE REVIEWER

Lelija Socanac is full professor at the Faculty of Law, University of Zagreb,
Croatia. She is the head of the Centre for Language and Law and the Foreign
Language Department. Her research interests include multilingualism, contact
linguistics, (historical) sociolinguistics, critical discourse analysis
(discourse historical approach) and legal linguistics.





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