Download 50 LEGAL TEXT AS TEXT IN ACTION Eva Pavlíčková This paper

LEGAL TEXT AS TEXT IN ACTION
Eva Pavlíčková
This paper presents results of our research conducted in terms of speech act theory into
legal language, namely into legislative texts – randomly selected British bills and acts, found
on the Internet, and into certain types of legal documents such as contracts, last wills and
testaments, and affidavits. The investigation was encouraged by the statement of John
Gibbons (1994) who in General Editor’s Preface defines legal language “not just as a set of
forms but also as discourse, as action” and that of Halliday (1985: 47) who points out that
“the speech functions adopted in legislation clearly typify its nature: as text in action”. In
general, a speech act is performed when the speaker/writer utters/writes an utterance with the
aim to fulfil their intention. In addition to a proposition their utterance contains certain
illocutionary force. We base on Austin who determined three components of the internal
structure of a speech act as follows:
locutionary meaning – the literal, propositional meaning of what is said or written, which is
always clear outside any context; it is the meaning of the form without defining its
function, without setting it into a particular context;
illocutionary force – the meaning of the form functioning in an actual setting; it is the
meaning intended by the speaker/writer in the given context. It is the pragmatic force of
an utterance that can be understood only within the particular context;
perlocutionary reaction (or effect according to Yule, 1996:49) – this is the non-linguistic
uptake brought about in the hearer/reader who recognises the illocutionary force of an
utterance.
From pragmatic point of view, in legal writing too the most important component of
an utterance is illocutionary force, which is, in our understanding, roughly equivalent to its
pragmatic meaning. We consider illocutionary force to be a certain manipulating tool of the
speaker/writer to achieve their intention. By means of illocutionary force the speaker tries to
control the situation. In the legal setting the controlling role and the illocutionary potential are
strengthened by the fact that the creator (author/writer) of an act is a representative of an
authoritative body. Here illocutionary force also includes the force of the authorial
imperative. From the pragmatic and legal points of view the perlocutionary effect does not
seem to be less important.
Widdowson (1996: 131) defines a speech act similarly to Austin. According to him a
speech act is an act of communication performed by the use of language, either in speech or
writing, involving reference, force and effect. Yule (1996: 47) characterises speech acts as
“actions performed via utterances”. In Graham Lock’s view (1997: 174) “speech acts are
labels for the kinds of things we are doing when we act upon one another through language”.
The Slovak linguist Ján Horecký (2000: 14) uses the term “an utterance act”. He considers it
“a basic unit of communication that says something about reality and includes a proposition
and an intention”. Jolana Nižníková (1994: 3) states, “… elementary, basic units of
communication, divided on the basis of phonic, semantic and/or syntactic criteria are called
speech acts, utterance acts or utterances”. According to her (ibid: 5) they are “sentences with a
certain communicative function. In addition to their propositional constituent and
communicative function they include a modal aspect”. Richards, Platt and Weber in Longman
Dictionary of Applied Linguistics (1992: 264) regard it as an utterance, a functional unit in
communication. Andrew D. Cohen in his Speech Acts (1997: 384) identically finds a speech
act “a functional unit in communication”. ”. Peter Trudgill (1992: 69) in Language and
Society says that the term is “used in discourse analysis, ethnography of speaking and
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pragmatics for the minimal unit of analysis of conversational interaction”. Most linguists
admit that a speech act is an act of communication performed by the use of language, either in
speech or writing. As we analyse speech acts carried out in legal writing, for the purposes of
this study we dare to use the term a legal language act.
In general, a felicitous speech act is an act whose form, content and intentions
constructed by the speaker/writer in a certain context are precisely reconstructed in the mind
of the hearer/ reader. In other words, successful speech act performance demands to formulate
locutionary and illocutionary meanings clearly so that their combination can make a desired
impact on the target addressee (in face-to face communication also on their senses). Clear
understanding of illocutionary force makes the target addressee perform a perlocutionary act
demanded by the creator (author/writer). It is important to realise that good transferability of
a speech act includes its performance as well as its interpretation. Performance is on the
side of the creator (writer/speaker), interpretation on the side of the reader/hearer. In Slovak
linguistics, the term ‘interpretation competence’ was introduced by Dolník and Bajzíková
(1998: 99). According to them “interpretation competence is the ability of a language user to
correlate the structure of linguistic expressions of which a text is created with the structure of
his knowledge relevant to the understanding of the text” (ibid: 103).
In the process of performance and interpretation reference and inference play an
important role. Reference according to Yule (1996: 17) “is an act in which the speaker, or
writer, uses linguistic forms to enable the listener, or reader, to identify something”. Inference
is the role of the reader/listener to guess by reasoning what is the writer/speaker’s intention. In
Yule’s understanding it is “the listener’s task to infer correctly which entity the speaker
intends to identify” (ibid: 17). The role of inference in text interpretation is also emphasised
by Dolník and Bajzíková (1998: 117). According to them “its function lies in actualisation of
the knowledge which is not explicitly expressed in the text”. They (ibid: 119) also mention
“pragmatic interpretation (understanding) of a text which is based on the recipient’s
pragmatically relevant knowledge”.
Everything what relates to speech act transferability in general can be applied to
transferability of legal language acts. The less pragmatic, professional linguistic and general
linguistic knowledge the performance and interpretation of a speech act require, the more
probable and easier its transferability is. Successful performance and successful interpretation
of a legal language act require not only the creator’s (author/writer’s) and reader’s general
“pragmatic competence” but also their good general language competence as well as
“language specific-semantic competence”. The terms in quotation marks are taken from
Blum-Kulka (1981: 91) who also points out that “the utterance is interpreted on the bases of
shared assumptions between the speaker/writer and the hearer/reader over and above the
linguistic content of the sentence used”. (ibid: 90)
According to Austin (1962: 51) there is an effective test how to find out whether an
utterance that contains a performative verb is capable of performing a speech act. It requires
meeting the several conditions. The first condition is the possibility of meaningful insertion of
the adverb hereby. (Hereby means by means of this statement, law, etc., by doing or saying
this.) It emphasises the performativeness of a particular speech act. The next condition is the
use of a performative verb in the present simple tense. While the utterance of I warn you that
we will take action against you will under normal circumstances constitute an act of warning,
the utterance of I am warning you that your tenants will take action against you is not
considered to be a speech act. In Austin’s view (1962: 64) the latter answers the question
What are you doing? and it is only a “description of an act of warning, something that one
might say to describe and make explicit the act of warning which is simultaneously being
given”. In his view an utterance that contains a performative verb can perform a speech act
only if two more conditions are fulfilled:
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-
if the subject is expressed by the first person I/we
if the object is expressed by the second person you.
Austin (1962: 57) admitted the existence of performatives with different structures but
only if such an utterance “can be paraphrased in the form of the basic structure”. He pointed
out that “any utterance which is in fact performative should be reducible or expandable or
analysable into a form with a verb in the first person singular present indicative active”.
The study of the performative utterance and morphological characteristics of the
performative verb occurring in legal texts proves that the performative verb is not used
inevitably in its model form (base form with a first-person pronoun subject). It is also found
in other morphological forms (as defined by Greenbaum and Quirk, 1995: 25). In our view,
there are different reasons for using non-traditional structural linguistic devices. Therefore our
research is directed at the analysis of some characteristics of the performative verb.
We would like to mention the importance of the adverb hereby in legal performative
utterances. According to Melinkoff (1963: 305) “hereby gives the flavour of the law” and “it
is a marker of a legal performative”. We find it surprising that the adverb accompanies the
verbs even in the passive voice. In our view, it enhances the illocutionary force of the act and
adds the passive verb a certain kind of ‘performativeness’. We think that in the legal
performative utterance with the verb in the present simple tense, both in the passive and active
voice, the adverb hereby undertakes the role similar to the one played by the progressive
aspect in other discourse types. As the function of the adverb hereby is to emphasise the
performativeness of an utterance, this adverb is also a decisive marker in our speech act
analysis. The findings we gained from our piece of research prove that the adverb is a
frequent but not an inevitable companion of the performative verb.
The tense is one of the examined characteristics of the performative verb. In the
analysed texts performative verbs predominantly occur in the present simple tense in a
positive verb phrase.
A:I hereby give and bequeath the sum of One Hundred Thousand Dollars ($100,000) to my
nephew, JOSEPH DIMAGGIO (son of my deceased brother, MIKE DIMAGGIO). (The Last
Will and Testament of Joseph P. DiMaggio)
We also discovered several negative verb phrases. We believe that they can also be
used to perform legal language acts. According to our findings the usage of a negative
performative verb form is semantically preconditioned. If a negative form of one performative
verb has the meaning that may be expressed by a positive form of another performative verb,
then, in our view, it is capable of performing a legal language act.
The Engineer’s approval of the documents does not relieve the Contractor from any
responsibility for the obligations included in the Contract.
Based on our analysis we claim that the most common morphological verb form in
bills and acts is the present tense indicative mood -s form. The same applies to the analysed
contracts and agreements.
The Contractor hereby undertakes to submit to the Fund by… (the date) at the latest a
Final Report.
The Lessee hereby acknowledges delivery and acceptance of the aforesaid Property upon
terms and conditions of this Lease.
The Trustee, by joining in the execution of this Agreement, hereby signifies his acceptance
of this trust
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In last wills and testaments, and affidavits the most frequent verb form is the present
tense indicative mood base form with the first-person pronoun subject I. In the analysed legal
documents it is used mostly but not inevitably with hereby.
♦ with hereby
I, (the name of a person), of (the residence), hereby appoint (the name of a person), of (the
residence), as my attorney in fact of to act in my capacity to do every act that I may legally
do through an attorney in fact.
♦ with hereby and the emphasising do
Many times, where a legal language act is expressed by hereby, it is strengthened by do.
I, (the name of the person), of (the residence), do hereby sell and convey to (the name of a
person), and his heirs, executors, administrators, successors and assigns the following
property (the description of the property follows).
I, (the name of a person), (the address), do hereby certify the attached is a true and
correct copy of the certificate of incorporation of (the name of the company), filed in this
office on …(the date).
♦ with hereby and the emphasising do & now
Sometimes the deictic expression now emphasises the present place and the present moment
of the act being performed.
I do now hereby revoke said Trust, with all the principal thereof reverting absolutely to
me, with all right and title thereto.
The performative verb in the examined texts also occurs in non-finite morphological
forms. Non-finite verb forms such as –ing present participle form and –ed past participle
form, especially in non-finite verb phrases, are not generally recognised as the forms used to
perform speech acts. These forms, however, are found in the investigated texts and they seem
to rank among the means used for legal language act performance.
Non-finite verb phrases:
-ing present participle form
♦ with hereby
I, (the name of a person, residing at …, being of sound and disposing mind and memory
and considering the uncertainty of this Life, do make, publish and declare this my Last Will
and testament, as follows, hereby revoking and making void any other will by me
heretofore made.
♦ without hereby
I nominate, constitute and appoint XY (the name of a person and his/her address)
Executrix and Trustee of the trust, giving to the said Executrix and Trustee full power and
authority to sell, convey, mortgage, lease, pledge or exchange in his/her discretion, all or
any part of my estate…
-ed past participle form
In our examples the –ed past participle form is located in both finite and non-finite verb
phrases.
Finite verb phrases:
♦ with hereby
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…(the name of a person), (hereinafter referred to as ‘Releaser’), for and in consideration
of the sum of … and other valuable consideration received from or on behalf of (the name
of a person), (hereinafter referred to as ‘Releasee’), the receipt of which is hereby
acknowledged…
♦ without hereby
Most of the found examples do not contain the adverb hereby.
The Lessee is precluded from sub-letting the Tenement or from assigning the lease to third
parties.
The Executrix, therein named, is duly authorized to administer the estate of the decedent
agreeably to said Will.
The Engineer is required to obtain the Purchaser’s prior specific approval before
exercising the following duties.
Non-finite verb phrases:
Signed, sealed, published and declared to be the Last Will and Testament by … in the
presence of all of us, who in the presence and at the request, and in the presence of each
other, have hereunto subscribed our names as witnesses.
The performative verb in the present tense, progressive aspect is not generally
considered to be able to perform a speech act. In the examined contracts and agreements a few
examples of a performative verb in the present continuous tense were observed. Allan claims,
“a performative may occur in either the simple or progressive aspect”.
(http://www.artsmonash.edu.au/ling/speechactsallan. shmtl) his view encourages us to think
that the present tense combined with the progressive aspect is a sign of performativeness even
though such examples do not occur abundantly.
Hereunder the Lessor is hereby granting on temporary Lease to the Tenant who accepts
the tenement at (the name of the place).
Agreement entered into between: (the name of a person), hereinafter referred to as the
Lessee on the one part and (the name of a person) on the other part, hereinafter referred
to as the Lessor whereby Lessor is hereby granting on Lease to Lessee who accepts the
tenement solely for residential purposes namely:…
There is also a generally held view that the present perfect tense cannot be used to
perform speech acts. However, Kurzon (1986: 10) admits the possibility of performing a
speech act by a performative verb in the present perfect tense. During our analysis we found
several examples of performative verbs in the present perfect tense and we also consider them
to be the devices for carrying out legal language acts.
Since the amount of the unsettled obligations and debts between the contractual parties is
different, the Contractual Parties have agreed that they will perform a mutual inclusion of
debts and obligations in the amount of (the amount of money) and the difference in the
amount of (the amount of money) against…. Company, which is payable until (the date).
WHEREAS, Europay has also agreed to provide to Licensee certain maintenance and
support services for the Software.
In some legal documents the use of the present perfect tense may well be explained as
a lapse on the lawyer’s part due to his language misapplication but his intention – to perform
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a legal language act – is clear in the analysed document; while the use of the present perfect
tense in the old enacting formula, still valid in British Finance Acts seems to be intentional.
Most Gracious Sovereign, We, Your Majesty’s most dutiful and loyal subjects, the Commons
of the United Kingdom in Parliament assembled, towards raising the necessary supplies to
defray Your Majesty’s public expenses, and making an addition to the public revenue, have
freely and voluntarily resolved to give and grant unto Your Majesty the several duties
hereinafter mentioned; and do therefore most humbly beseech Your Majesty that it may be
enacted, and be it enacted, etc.
The voice is another examined category of the performative verb in the present
research. Although the model structure of the performative utterance is claimed to contain the
performative verb in the active voice, in both studied types of texts, examples containing
performative verbs in the passive voice are found. Kurzon (1986: 6) indirectly admits the
existence of the performative verb in the passive voice by providing the following example of
a potential speech act you are authorised to pay, which may be rewritten into I/we hereby
authorise you to pay.
It is hereby declared that any reference in this section to a term of a contract includes a
reference to a term which although not contained in a contract is incorporated in the
contract by another term of the contract. (Sale of Goods Act 1979)
An Economic and Social Committee is hereby established. (EC Legislation, Chapter 3,
Article 193)
Citizenship of the Union is hereby established. (EC Legislation, Chapter 2, Article 8)
A European Investment Bank is hereby established, which shall act within the limits of the
powers conferred upon it by this Treaty and the Statute annexed thereto.
(EC
Legislation, )
(33) the enactments specified in Schedule 6 to this Act are hereby repealed to the extent
specified in the third column of that Schedule. (Sale of Goods Act 1979)
Consistent with the goals of the present study we feel the need to provide a more detailed
description of the verb category of mood. Huddleston (1984:164) takes the view that “there is
no inflectional system of mood in Modern English”. Traditionally the term mood is applied to
grammatical systems of the verb or verb phrase whose terms are differentiated semantically
primarily in the contrast between factual assertion and various kinds of non-factuality and/or
non-assertion. It expresses contrasts among indicative, imperative and subjunctive. According
to certain grammarians interrogative too falls under this definition.
We use the term mood in the traditional understanding. In our view, it is one of the
verb categories, and it signals a sentence type. It is used with reference to indicative,
imperative, subjunctive, and interrogative. General definition can be given as follows:
Indicative is the unmarked term in the system that is characteristically used in factual
assertions. The imperative is used for the verb form figuring in requests and commands.
Subjunctive is used for the verb form associated with subordinate clauses involving nonfactuality.
Owing to the frequent occurrence of verbs in the indicative mood we do not present
the examples of them. They are provided in parts on tense and voice.
Linguists dealing with legal speech acts do not mention the usage of the imperative.
Kurzon (1986: 10) considers be it enacted in the enacting formula (still valid in British
Finance Act) the passive imperative and also admits the existence of passive imperative in
legal documents by saying “The only case of a legal document in which a performative occurs
in the form of a passive imperative seems to be probate declarations: ‘be it known that’…”
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(see example the below). Kurzon (ibid) does not mention the occurrence of the active
imperative in legal documents. However, analysing legal documents we came across the
expression KNOW (YE) ALL MEN BY THESE PRESENTS, which means be informed by
this document and is often used to emphasise a statement. In our view it is clear evidence of
presence of the active imperative in legal documents, and its purpose is to express the act of
assertion.
Passive voice
Be it enacted occurs in both enacting formulas, the old one (still used in the Finance Act) as
well as the new enacting formula.
Most Gracious Sovereign, We, Your Majesty’s most dutiful and loyal subjects, the
Commons of the United Kingdom in Parliament assembled, towards raising the necessary
supplies to defray Your Majesty’s public expenses, and making an addition to the public
revenue, have freely and voluntarily resolved to give and grant unto Your Majesty the
several duties hereinafter mentioned; and do therefore most humbly beseech Your Majesty
that it may be enacted, and be it enacted, etc.
BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament
assembled, and by the authority of the same, as follows:BE IT KNOWN, that (the name of a person), (hereinafter referred to as ‘Releaser’), for
and in consideration of the sum of … and other valuable consideration received from or
on behalf of (the name of a person), (hereinafter referred to as ‘Releasee’), the receipt of
which is hereby acknowledged…
Active voice
KNOW YE ALL MEN BY THESE PRESENTS, that, I, …the name of the person….., of
…the residence…., for and in consideration of payment of the sum of …, the receipt of
which is hereby acknowledged, do hereby, grant, bargain, sell and convey to ….., and his
heirs, executors, administrators, successors and assigns the following property
Analysing the texts we came across examples containing the subjunctive. The subjunctive
mood is a carrier of formality and archaism. We agree with Rodney Huddleston (1988: 350)
who says: “we have to say that the correlation between the syntactic (form) and semantic
(function) categories is significantly less direct with subordinate clauses than with main
clauses. The uttering of a subordinate clause does not usually constitute an illocutionary act; it
is only in uttering the main clause of which it is part that such an act would be performed”.
We consider the following examples those of mandative subjunctive.
The Court may order that a witness or an expert be heard by the judicial authority of his
place of permanent residence.
I direct that my executor pay all my funeral expenses, all state and federal estate,
inheritance and succession taxes, administration costs and all my debts subject to statute
of limitations except mortgage notes secured by real estate, as soon as practical.
It seems that defining of the subjunctive mood causes problems. According to Kurzon
(1986: 10) be it enacted as well as be it enacted that in the enacting formulas are the examples
of the passive imperative. Quirk, Greenbaum, Leech, and Svartvik in A Comprehensive
Grammar of the English Language (1991: 156) present the following example of formulaic
subjunctive: Be it noted that this offer was made in good faith. Thus, according to them, be it
enacted and be it known should be considered the formulaic subjunctive. In Maley’s
understanding (1994: 20) “be it enacted is the remnant of old jussive subjunctive”. He
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justifies it by saying, “The archaic jussive subjunctive form expresses clearly the relationship
between the text and the source of the discourse – it is expressed as if it were a perpetual,
speaking command from the sovereign power to its subjects.” Our viewpoint takes into
consideration the present form of the above-mentioned examples. Accordingly, we favour the
Kurzon’s opinion.
Most Gracious Sovereign, We, Your Majesty’s most dutiful and loyal subjects, the
Commons of the United Kingdom in Parliament assembled, towards raising the necessary
supplies to defray Your Majesty’s public expenses, and making an addition to the public
revenue, have freely and voluntarily resolved to give and grant unto Your Majesty the
several duties hereinafter mentioned; and do therefore most humbly beseech Your Majesty
that it may be enacted, and be it enacted, etc.
There is an obvious close relationship between the grammatical system of mood,
sentence types and functions (speech acts) as it is illustrated in the table below: declarative,
interrogative, imperative, and exclamative. They are also called syntactic categories. As we
have said the mood is a category of the verb and its identification is the matter of morphology.
Also, the sentence type is a matter of grammar, specifically of syntax. This means that
sentences differ from each other according to certain features of their syntactic structure (the
position of the subject, the form of verb phrase, absence or presence of other sentence
elements). The speech act identification cannot be realised within a single clause, it is almost
always a matter of structure, meaning, intonation and context. It is the context that defines the
type of a speech act.
It is necessary to pinpoint certain correspondence between a morphological category
of mood and a syntactic sentence typology. The correlation is as follows:
MOOD
Indicative
Interrogative
Imperative
Subjunctive
SENTENCE TYPE
declarative sentence
Interrogative
Imperative
Declarative
FUNCTION
Statement
question, request
Directives
wish, order
We analysed legal language acts in terms of correlation between the sentence
type/mood and function, presence or absence of a performative/modal verb and exerted
illocutionary force. The results of the analysis prove our expectations: almost exclusive
occurrence of declarative sentences. Except for a few examples of legal language acts carried
out by the imperative sentences the declarative sentences are solely used in the examined type
texts to perform the identified legal language acts.
“Whenever there is a direct relationship between a structure (declarative, interrogative,
imperative) and a function (statement, question, request), we have a direct speech act”
(Yule, 1996: 54,55). Hurford and Heasley (1996: 259) use the term “direct and indirect
illocution”. They define the direct illocution of an utterance as follows “it is the illocution
most directly indicated by a literal reading of the grammatical form and vocabulary of the
sentence uttered” (ibid). For example, if an order is expressed by an imperative sentence or
when a statement is made by a declarative, a direct speech act is performed.
Yule (1996: 55) points out, “whenever there is an indirect relationship between a
structure and a function, we have an indirect speech act ”. When a declarative is used to
make command or request, it is an indirect speech act. Hurford and Heasley (1996: 269) see
one of the reasons for performing indirect speech acts in the following: “the gap between
sentence meaning and utterance meaning is least noticeable when speakers are being direct
(i.e., not being ironic, or diplomatic, or polite). Politeness is one of the main motivations for
using an indirect illocution in preference to a direct one.” Speaking about directives Hatch
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(1992: 122) says that “some researchers believe the greater the risk of refusal, the more
indirect the directive will be”. Indubitably, tradition, convention, etc. influence the frequency
of indirect legal language acts.
James (1992: 120) mentions that “whether or not we are explicit depends on how
precise we need to be, which depends on the setting of the communication: a legal contract or
an international treaty has to be unambiguous and will therefore be maximally explicit”.
The utterance that does not contain a performative verb expresses a certain kind of
speech act implicitly. The language of the law is rich in implicit speech acts. In bills and acts
as well as in contracts, agreements and other legal documents we found implicit speech acts
of promise, order, prohibition, permission, etc. expressed by modal verbs.
The following sentence does not contain a performative verb promise but under
appropriate circumstances the sentence expresses an implicit legal language act of promise
performed by the Lessor through the modal verb will (not).
The Lessor during the lease period of 1 year will not increase the rent as agreed upon.
Prohibition is expressed most frequently by the modal shall not as it can be seen in the
following example.
In case any one or more of the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal; or unenforceable provision had never been contained
herein.
Explicit speech acts are acts where the message transmitted is clearly stated or shown.
It is fully expressed, unambiguous, and definite. It does not involve any guesswork. Yule
(1996: 129) uses the term “explicit performative” for a speech act containing a performative
verb. By the use of a performative verb the illocutionary force is made explicit. Explicit
speech acts are marked by a performative verb.
Yule in Pragmatics (1996: 49) presents the term “the illocutionary force indicating
device” (IFID). According to him it is “an expression for a verb that explicitly names the
illocutionary act being performed. Such a verb can be called a performative verb.” Kempson
(1992: 59) uses the term “explicit illocutionary force indicator”.
Analysing legal texts we found out that they are a rich source of performative verbs
that are the carriers of explicit illocutionary force. In Yule’s terminology all they are IFIDs.
We also made an attempt to classify legal language acts. They are analysed in terms
of:
I
correlation between the sentence type/mood and function
II
presence or absence of a performative/modal verb
III
exerted illocutionary force
I Correlation between the sentence type/mood and function (direct – indirect)
We based the division on the relation between a structure and a function. Whenever
there is a direct relationship between a structure (declarative, interrogative, and imperative)
and a function (statement, question, and request), we speak of a direct speech act (Yule,
1996: 54,55). Whenever there is an indirect relationship between a structure and a function,
an indirect speech act is the case (ibid: 55).
Except for a few examples of legal language acts carried out by the imperative
sentences almost exclusive occurrence of declarative sentences/indicative mood is
observed in both types of the examined texts.
II Presence or absence of a performative/modal verb (explicit – implicit)
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The type of a verb allows us to distinguish between explicit and implicit acts, and
ultimately arrive at the categories below.
a/
b/
a performative verb explicit (legal language acts)
Citizenship of the Union is hereby established. (EC Legislation)
a modal verb (implicit legal language acts)
Licensee shall hold such Confidential Information in strict confidence…
Implicit legal language acts expressed by modal verbs may, shall, must occur most
frequently. May expresses permission and shall some obligation, duty, task. Kurzon (1986:
22) points out, “both shall and may imply some authority – the speaker – that authorises a
body to do something as a requirement (or duty) or to do it at its discretion”. Shall is used to
perform the act of ordering and the negative modal verb shall not carries out the illocutionary
force of prohibition.
c/
a modal-performative-verb combination
During our analysis many sentences containing combinations of a modal verb and a
performative verb were found. Such a combination is not generally recognised by linguists as
a typical performative utterance but we dare say that some modal-and-performative-verb
combinations may also have the status of legal language acts.
The following example contains the combination of shall (which expresses obligation)
and the performative verb permit. We think that such a legal language act has the status of the
act of permission. The modal shall here manifests future necessity of the act of permission.
To assist Europay and MasterCard in the protection of their proprietary rights, Licensee
shall permit and shall cause the Sublicensee to permit representatives of Europay and
MasterCard or its agents to inspect the Software being used at all mutually agreed upon
times during normal working hours.
The two following examples contain the modal verb shall and the performative verb
abolish. It appears that in such combinations the performative verb exerts more strength and
is more capable of gaining a desired result.
Customs duties on imports in force between Member States shall be progressively
abolished by them during the transitional period. (EC Legislation)
The quotas shall be abolished by the end of the transitional period at the latest. (EC
Legislation)
In the following example the modal verb shall expresses that the act of disclaiming
cannot be avoided or prevented from happening. It shows certain ‘inevitability’.
The Sublicensee shall disclaim any right, title, or interest in the Software…
d/
a performative-performative-verb combination
We also found many examples of combinations of a performative verb and a
performative verb.
The Lessee agrees to allow the Lessor or his agent to inspect the tenement or show it to
potential future tenants on request, subject to 24 hours notice.
The Tenant undertakes to allow the Lessor to inspect the premises whenever the Lessor
deems necessary.
In the two examples above two performative verbs appear. Permission is made by the
performative verb allow. The performative verbs (agree, undertake) are used to make
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permission officially and fully stated or announced to the public. The acts of agreeing and
undertaking are performed in order to emphasise the act of permitting. If the Lessee agrees
and the Tenant undertakes to allow somebody to do something, it means that they allow
somebody to do something. In spite of the fact that the performative verb allow is in the
infinitive (the form which is not generally considered to be the form of the performative verb
in a performative utterance), we dare say that the intended act of permitting is performed.
Each Member State undertakes to authorise, in the currency of the Member States in
which the creditor or the beneficiary resides, any payments connected with the movement
of goods, services and capital, and any transfers of capital and earnings, to the extent that
the movement of goods, services, capital and persons between Member States has been
liberalised pursuant to this Treaty. (EC Legislation)
The Member States declare their readiness to reduce customs duties against the other
Member States more rapidly than is provided in Article 14 if their general economic
situation and the situation of the economic sector concerned so permit. (EC Legislation)
In both sentences, in our view, two acts (promise & authorisation and declaring & reducing)
are being performed. Both performative verbs, in each of the presented sentences, seem to
exert almost the same illocutionary force.
III Exerted illocutionary force
The research material provides examples of four types of acts. (We based our analysis
on the division of speech acts made by Searle.) Our analysis proves the prevailing occurrence
of directives and commissives. This can be supported by Hurford and Heasley’s claim that
“Society, as we know, could not exist without the availability of a range of directive and
commissive acts” (1996: 264). Expressives, the fifth type, is not further specified owing to its
absence in the analysed material. The following table presents the classification of speech acts
by Austin and Searle and enlists speech and/or language acts which were identified in the
examined texts. Some acts are written in the boldface type to indicate major acts recognised in
the analysed material.
AUSTIN
Expositives
SEARLE
Representatives
Commissives Commissives
Behabitives
Exercitives
Expressives
Directives
Verdictives
Declarations
ASSORTED EXAMPLES OF EACH TYPE
appointing, approving, asserting, claiming, confirming, denying,
stating, suggesting,
accepting, agreeing, binding oneself, committing oneself, giving
one’s word/power, guaranteeing, offering, pledging, promising,
undertaking, swearing, volunteering, vowing
not further specified due to its absence in the analysed material
admonishing, advising annulling, appealing, asking, begging,
bidding, commanding, counselling, demanding, directing,
discharging, dismissing, enjoining, exhorting, forbidding, inviting,
imploring, insisting, instructing, inviting, ordering, permitting,
pleading, prohibition, refraining from, requesting, requiring,
restriction, suggesting, urging, warning
blessing,baptising, marrying, naming,nominating declaring,resigning
Below we present the descriptions of the most frequent speech acts discovered in our
corpus.
A commissive is a speech act “which essentially involves the speaker committing
himself to behave in some required way” (Hurford and Heasley, 1996: 262). According to
Yule (1996: 128) a commissive is a speech act in which the speaker commits himself to
something, e.g. the acts of promise and commitment.
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A directive is a speech act “which essentially involves the speaker trying to get the
hearer to behave in some required way” (ibid: 262). According to Yule (1996: 129) a directive
is a speech act used to get someone else to do something. In the case of directives the
performer of a required action is the target addressee. A general nature of a directive is to
“identify some future action or behaviour on the part of the addressee(s) (including refraining
from doing something) and to bring about that action or behaviour” (Huddleston, 1984: 359).
Hutch (1992: 123) says, “… the variation in directive forms within a language must be
sensitive to social constraints”. Goffman (1976: 267) for social constraints uses the term
‘ritual’ constraints. We believe that traditions and legal conventions have significant influence
on the way of performing legal language acts. When an order or request is made in legal
writing, imperatives are less polite than declaratives. The obligatory character of legal texts
and their discourse requirements may explain the absence of the imperative in the examined
texts. Directives in the analysed corpus are expressed by a declarative sentence.
Interrogatives are completely absent from the texts of this type.
NOTE: The terms a directive act and a direct act are not identical. Here the term directive denotes the kind of a
legal language act, i.e. getting someone to do something. The term direct describes the way of performing an act.
The opposite is an indirect act.
The results of our analysis prove that legal texts are a fruitful soil for performative
utterances. The analysis also proves that many performative utterances do not occur in the
standardised structure, such as I pronounce you man and wife. Naturally, there are some
borderline circumstances in which it is difficult to define whether a given utterance is
performative or is not performative. We looked at a certain range of linguistic tools by means
of what the effectiveness of law is achieved, “A major task for the theory of speech acts is to
account for how speakers can succeed in what they do despite the various ways in which a
linguistic meaning underdetermines use”(Bach). In everyday communication, addressers may
do almost anything with the meanings and forms of the words they use in order to achieve
their intention under the context conditions. They have almost unlimited devices for
expressing their intentions to the extent of being certain that the meaning and the form they
use will be recognized by addressees. In the legal setting the creative space of addressers is
considerably restricted by conventions, traditions and expectations of addressees. It is often
the matter of convention “that utterance in a certain form counts as the performance of an act
of a certain sort.” (Bach, http://userwww.sfsu.edu/ ~kbach/spchacts. html) We believe that
even though there is (a) certain predetermined model/s of a legal language act structure, there
is still some manoeuvring room that is provided for the addresser’s disposal.
NOTE: All the claims presented here are made with reference to the analysed legal texts.
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PRÁVNE TEXTY AKO TEXTY PRODUKTÍVNO-AKTÍVNE
Resumé
Jedným z teoretických východísk prezentovanej analýzy právnych textov je teória
komunikačných (rečových) aktov sformulovaná J. L. Austinom a rozvinutá J. Searlom.
Komunikačný akt chápeme ako funkčnú jednotku v komunikácii. Z komponentov Austinovej
koncepcie je pre náš účel najdôležitejšia ilokučná sila výpovede, ktorá zhruba zodpovedá
pragmatickému významu. Pre pochopenie úlohy komunikačného aktu v právnych textoch je
pre našu prácu nevyhnutný rámec pragmatiky, keďže práve v nej sa zdôrazňujú záujmy a
postoje účastníkov komunikácie a účel výpovede. Hlavnou úlohou výskumu je identifikovať
prostriedky, ktoré sa používajú na realizáciu jednotlivých komunikačných aktov. Sústredili
sme sa preto napodrobnú analýzu ilokučnej sily komunikačného aktu v prostredí práva, ktorá
je vyjadrená performatívnym slovesom alebo modálnym slovesom. Článok ponúka detailnú
analýzu performatívneho slovesa na základe jeho jednotlivých charakteristík: slovesného
času, slovesného rodu, slovesného spôsobu a sústreďuje sa tiež na tie morfologické tvary
performatívneho slovesa, ktoré sa najčastejšie vyskytujú v skúmaných textoch.
63