Abstract
This essay deals with the problem of the relationship between legal language(s) and natural language(s). Is legal language a part of the common or natural languages, or is it a technical language? In order to deal with the problem, however, we must first be able to say what the differences are between common and technical languages. The distinction between natural and common languages on the one hand, and technical and artificial languages on the other, plainly requires a conceptual clarification. The intuitive feeling that we are confronting a technical language whenever we meet a lot of difficult words is a starting point, but plainly does not suffice to draw a plausible distinction that could apply to non-obvious cases such as the language of law. Certainly the presence of infrequent and/or difficult terms is a prima facie symptom of non-naturalness, but it ends up being misleading. I shall mention only two of the reasons why this is so. First, terms migrate from natural languages to technical and artificial ones, and vice versa. Secondly, we should remember that the complete lexicon of a natural language consists of hundreds of thousands of words, of which only about 2000 (in Italian) make up the ‘highly used lexicon’, the terms used and understood by most people. If most of the words of a natural language are difficult to a normal speaker, then by itself the presence of difficult terms cannot be evidence that we are dealing with a technical or artificial language. In this essay I propose instead a pragmatic criterion for distinguishing between natural languages and instrumental/artificial ones. This means that the key distinguishing feature is the different overall function of the language. The language of the law will be characterized by its peculiar function. These different functions are pragmatic aspects of languages, which generate as secondary aspects those features at the semantic and syntactical levels that make artificial/instrumental languages difficult for the layman to understand, and make and keep natural languages easy for all their native speakers to understand. According to this criterion, legal languages are neither natural (in this sense) nor artificial, but have features of both, belonging to the intermediate category of administered languages. They are instrumental to dealing with the law: that is, they are used with organized force administered by authorities. There is a sub-group of expert people, jurists, who are proficient in the intricacies of the law and of the language of law.
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Notes
- 1.
For instance, Mellinkoff 1963: 106.
- 2.
Jurists, in the same way as everybody else, use complex machines and contraptions, such as computers and cars. They are not called technicians with regards to their use of those machines, and their technical legal language is, of course, called technical not with reference to such machines, but with regards to the law. It is this supposed technical relationship that needs to be clarified, not the situation of a judge using a word-processor.
- 3.
In Carnap’s famous early formulation: “If in an investigation explicit reference is made to the speaker, or to put it in more general terms, to the user of the language then we assign [it] to the field of pragmatics … We may study the preferences of different social groups, age groups, or geographical groups in the choice of expressions. We investigate the role of language in various social relations, etc. … Pragmatics consists of all these and similar investigations” (Carnap 1938). Semantics and syntax are similarly characterized as the result of progressive abstractions. Carnap is inspired by Morris 1938, who defines pragmatics as dealing with the ‘biotic aspects’ of semiosis. See also Carnap 1955, where the author explains that there are two fundamental forms of the analysis of meaning: pure and descriptive linguistic studies. While natural language requires pragmatic integration, pure languages are truth-functional and therefore their meaning can be described by itself. The logical consequence would be that natural languages would have no ‘real’ semantics but only a syntax and a pragmatics, their meaning depending on the conditions of utterance. Also see the much later discussion of this and other conceptions of pragmatics in Gazdar 1979.
- 4.
Grice 1989. Grice calls pragmatics the territory of the speaker’s intentions, which consists of a conversational meaning that is different from the conventional meaning studied by semantics. This distinction is very useful as a starting point, but in the end it does not work very well, given that conversational meanings are also conventional, but depend on (different) rules and a wider conventionality. What interests us here are Grice’s famous four maxims of conversation (rules, to all intents and purposes). They are explications of a cooperative principle that suffuses all normal communications in natural languages in common social situations. We notice that with this theory Grice finds common pragmatic principles that characterize natural language as a whole. This confirms the idea that we should look for common pragmatic aspects that characterize whole languages, as I propose to do with legal languages. In the Gricean theory, conventional-componential meaning is enriched by pragmatic add-ons, depending on the situation of utterance. The point of the following pages is that such conversational principles are not particularly valid for legal language (and nor are they valid for artificial/instrumental languages). Legal language is forged for situations in which cooperation breaks down in potential conflicts, in which the cooperative principle is too precarious to constitute the basis of further comprehension. Moreover, legal language has a major impersonal component in its general norms (especially in legislation), which cannot be reduced to the situation in which it is applied (in court). See below n. 17, 18. Artificial/instrumental language, on the other hand, is largely forged in an attempt to avoid the need for cooperative pragmatic implicatures as much as possible.
- 5.
There is, of course, an enormous secondary discussion about what Wittgenstein really meant by ‘following a rule’, which usually goes under the title of ‘the sceptical paradox’ and starts from the famous interpretation of it given by Saul Kripke. As an uncouth legal philosopher, I found the essay by Bridges 2009 helpful on this point. Bridges battles valiantly with the difficulties of a rule-governed approach to language and meaning, which he rightly considers to be common sense. I cannot help also mentioning, as quite above my level of philosophical sophistication, S. Soames’ work, e.g. Soames 2010.
- 6.
I am not using here the notion of a linguistic rule in the narrow sense often used by modern linguists in order to distinguish descriptive from normative linguistics; normative linguistics is conceived as a set of authoritative rules that some linguistic authority tries to impose on a linguistic community. A language is the sum of rules (mostly consuetudinary rules) that allow the speaker to be understood by people sharing the same rules. In order to understand and use a language, we must be able to distinguish between mere habits and (although the border between the two is, of course, wholly porous) “real” rules, whose violation produces a feeling of linguistic mistake or even incomprehension. Rules imposed by linguistic authorities are in fact the same kind of rules as the implicit consuetudinary rules that linguists take into account, but their origin and justification are different. Often the rules for “Good language” are merely old consuetudinary rules, or even older rules obtained from the texts of literary authors, the Classics.
- 7.
“Pragmatics has as its topics those aspects of the meaning of utterances which cannot be accounted for by straightforward reference to the truth conditions of the sentence uttered” (Gazdar 1979: 2). This passage is quoted and discussed at length in Levinson 1983: 12 (Levinson ends up by defining pragmatics not with a definition but by a list of topics). A truth-functional definition of “pure” semantics would, of course, constrain semantic studies to descriptive truth-functional languages only, and would seem to relegate to pragmatics alone the whole description of non-descriptive languages such as normative language (which includes most of legal language). The consequences of this “purity” are somehow paradoxical, as only the (artificial) languages of the hard sciences would have real meaning and could be studied as independent objects. This is the original position of Carnap and Morris on the subject, and is one of the internal paradoxes that ultimately brought about the abandonment of neo-positivism. But it is not, of course, an idea that can easily be set aside: after all, natural languages are a very difficult object to circumscribe and describe; and the borders between semantics, pragmatics and socio-psychological facts that merely influence languages are very difficult to draw.
- 8.
Prescriptivism is the theory that prescriptive language has the same kind of meaning as descriptive language, albeit a different meaning. Both languages refer to the world, and the reference does not coincide with truth-value. Rules and norms refer to actions that must be done; verifiability comes into play insofar as a rule has meaning if we are able to verify whether it was observed or violated. The key authors of prescriptivism are moral and legal philosophers, for obvious reasons: Hare 1952, Ross 1968, and Scarpelli 1959.
- 9.
As seen above (n. 3), for the early Carnap a truly significant language has no pragmatics, which he identifies with a dependence on context; only the natural languages are limited to pragmatics, as they have no proper autonomous meaning and are understandable only in a context.
- 10.
I shall here use ‘language’ as a generic term that refers to all linguistic phenomena. I shall call semiotics the study of language (and other signs) as a meaningful phenomenon. I shall also use ‘a language’ and the relative plural, ‘languages’, to designate a set of linguistic expressions unified by their pragmatic function(s).
- 11.
See above, n. 3.
- 12.
“Pragmatics is the study of situated uses of language […]. Since direct experience with interpretation of language is experience with interpreting uses, however, we cannot always be sure in advance which phenomena will fall exclusively in the domain of semantics and which will turn out to require attention to pragmatic factors as well” (Chierchia and McConnell-Ginet 2000: 5). This very common-sense observation makes it difficult but not impossible to separate semantics and pragmatic considerations, semantics being what is left once we discount the influence of specific contexts and situations. However, it is obvious from the works of students of pragmatics, starting from Grice, that even micro-pragmatics refers to typical situations and contexts. So the difference can only be a relative one.
- 13.
Above, n. 4.
- 14.
There are, of course, well-known historical exceptions in which foreign languages or dead languages are used. This happened with Latin, which remained central in the law in many countries until recent times. There is also the picturesque case of medieval French in the English legal language. See Mellinkoff 1963.
- 15.
‘The meaning of a legal rule’ is a common, but philosophically misleading, expression. A legal rule or norm is itself a meaning: precisely the meaning of the class of (prescriptive) sentences that have that meaning. Therefore we should say that a legal rule is a meaning rather than has one. However, jurists usually imply that the sentence is the rule and that different meanings of the same rule-sentence are different interpretations of the same rule, not different rules. Saying that a rule has a meaning can be a harmless homage to this habit, provided that we do not forget that a rule-sentence can have several meanings and therefore express several rules; and also that several rule-sentences can have the same meaning, being synonymous, and therefore can be paraphrases of each other and mean the same rule.
- 16.
The thesis that legal language is a style or register of natural language is discussed by Galdia 2009. Galdia correctly distinguishes between the different types of text in law and reports (Galdia 2009: 89), and says that lawyers answer both yes and no to the question of whether legal language is a separate language. See also, for the Anglo-Saxon law, Mellinkoff 1963. Mellinkoff is a well-known enemy of “legalese”, an example of a prescriptive approach to legal language that is very common, although his book is also full of information about legal language (focused on the U.S.A.).
- 17.
See Marmor 2008. Marmor’s conclusions are rather disappointing: we do not know what is included in the law and what is not. On the plus side of Marmor’s essay, there is the thesis that pragmatic considerations and rules might also apply to statutory law and not only to what is said in court; on the negative side, there is the characterization of legal language as a means of communication, which is obvious, given that every language is a means of communication. I hope to avoid a similar fate by referring to some general but, I hope, non-vacuous aspects of legal language. This is certainly not all that there is to say on the matter: a more detailed analysis of legal pragmatics would have to distinguish different fields and uses of legal languages, in all their similarities and differences with regards to normal conversation. See, for instance, Poggi 2011. Poggi takes into account the conflictual nature of legal interactions, and distinguishes between authoritative acts and contractual acts in the way in which they are affected by different pragmatic rules. See the line of research on the theme of (legal) pragmatics, conflicts and cooperation (S. Pinker, S. Borge). See also below, n. 20
- 18.
For a useful introduction to this problem, see Kryk-Kastovsky 2006. The author gives special attention to the language used in court, and is obviously influenced by the attention to conversation that is common in pragmatics. In the case of the law, however, he stresses the importance of the distinction between power and solidarity. As law is all about power, this distinction has a much greater importance here than in normal conversations. The pragmatics of written and/or impersonal legal communication, such as legislation, should also not be neglected. See also the final paragraph (“The Language of the Law – At the Crossroads of Sociopragmatics, Discourse Analysis, and Intercultural Communication”), which raises the usual question of the distinction between socio-psychology and pragmatics: I agree with the author that a broader approach than pragmatics is required in order to explain many aspects of legal language, which also depends on legal and social aspects. He rightly takes into account the very obvious fact that the law is also determined by other factors apart from its linguistic/semiotic aspects.
- 19.
Most of the attempts to describe the pragmatics of legal languages have started from the results of the pragmatics of conversations in natural languages. In my opinion there are analogies but also radical differences. See, for instance, the attempt to apply Gricean maxims to legal interpretation: Geoffrey 1990 and Sinclair 1985. Leech 1983 introduces a politeness principle with a similar pragmatic function to the conversational maxims. I maintain that the law is a dominion of (potential) conflicts with the potential participation of the legal authorities, so that legal language is constructed precisely to avoid most of the “politeness” assumptions (they become extremely dangerous when not shared by all the parties).
- 20.
So far as I know, this expression was invented by Raz 1970.
- 21.
Of course, not every speaker of a natural language always understands every sentence that is said in that language: take complex driving directions, for instance, or Shakespeare. We understand and we do not fully understand at the same time. So we must also qualify the assertion that discourses in ordinary language are understandable by the general public. Let us say that we understand the gist of a sentence, if we are given the opportunity to parse it out. Linguists, of course, classify native and non-native speakers of a language according to their levels of linguistic competence (for instance, by the number of words and word families that are passively and actively known).
- 22.
We could consider the various forms of writing as technical languages: languages whose function is to reproduce with visual signs the spoken languages of man. In this case we could number three ancient types of artificial languages, which together form the basis of human civilization.
- 23.
We could perhaps also count the calendar, or in general the language for measuring time, among the primordial artificial/instrumental languages. I have not put it with the others (arithmetic, geometry and writing), because I am not sure that a calendar should not be classified as a use of numbers. In this case, the language is instrumental but it is certainly not felt to be artificial, insofar as the measuring of years, months and days and its use in common thinking by everybody is as old as agriculture or older, (the language for measuring hours, minutes and seconds has become really familiar only with the birth of the industrial world). I thank Gianpaolo Azzoni for drawing my attention to the notion of the calendar as a language.
- 24.
Of course a good doctor should do his best to inform and persuade his patients, because as a matter of ethics he should be treating them as free human beings. Moreover today the law usually requires doctors to inform their patients of the basic facts of their situation and their prospects.
- 25.
A strong opinion about what the law is in a certain society usually goes hand in hand with very little precise knowledge about the content of the said law: common people rely on professional jurists to tell them about the details when they need to know them. I would not call this an acceptance of the law of the country; it is rather a sort of perception. The law is individuated with reference to plain external points, police, jails, and tribunals, just as we perceive the outline of a complex machine of the inside of which we know little. I would call this a quasi-perception of the law in action. This works tolerably well when there is only one candidate for the title. When the number of candidates becomes two or more, when there are conflicting legal systems around, as in a situation of civil war, it is a sure sign that the normal practice of law is breaking down and the society is entering a pathological state. I tried to deal with these problems in Jori 2010.
- 26.
See, however, n. 14 above for known cases in which a considerable part of the law was in a different (ancient) language. In such cases the jurists also had the function of translators.
- 27.
In the ancien régime, the supreme authority, the king, was of course no lawyer; the same was true for the aristocracy, who occupied all the important positions of legal authority apart from the judiciary. In France the top echelon of the judiciary made up a separate aristocracy, called the noblesse de robe. All this has nothing to do with linguistic communities and expertise, and everything to do with power and social classes.
- 28.
The classical case is the Roman judge, who was an official holder of the highest offices of the State (consul, praetor or quaestor) and as such was a layman. The magistrate was assisted by an expert jurist assessor. Jurors are one important contemporary case of lay members of a judiciary organ. In many legal systems several judges are collective bodies made up also of lay members.
- 29.
There is the notorious case of imperial China, where giving legal advice to the public was severely punished as an improper interference with the administration of justice. Legal experts, however, could and did counsel the magistrates.
- 30.
This was made clear in the Corkery decision involving the meaning of the word vehicle: Corkery v Carpenter (1951) 1 KB 102, King’s Bench Division. The court held that there were other considerations that determined the meaning of the legal rule concerning drunk driving, besides the meaning of the word ‘vehicle’. We may suspect this decision was the inspiration for a famous example by Hart 1961: 124. Hart’s example discusses the meaning of the word ‘vehicle’ in the notice: “No vehicles in the park”, and concludes that ordinary words have a core of meaning that is relatively certain and a grey area that is uncertain.
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Jori, M. (2016). Legal Pragmatics. In: Capone, A., Poggi, F. (eds) Pragmatics and Law. Perspectives in Pragmatics, Philosophy & Psychology, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-30385-7_3
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