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11ISSN 2658-5138 Язык науки и профессиональная коммуникация. 2022. № 1 (6) УДК 81.111’276.6
DOI: 10.24412/2658-5138-2022-6-79-89
ББК 81.2 Англ.-3
GENDER CAPACITY
OF ANGLO-AMERICAN LEGAL TERMINOLOGY
Volgina, E.V., ORCID ID: 0000-0001-6381-8641, Saratov State Law Academy, 1, Volskaya str., Saratov, 410056, Russia volginalena@rambler.ru
Various aspects of the gender system influence specialized areas of the language. Legal terminology is no exception, since the law regulates the vast spheres of social life. The interdisciplinary character of gender studies has justified the need for linguistic competence to study the gender construct, which has generated an independent discipline - linguistic genderology. In this context, the problem of the influence of gender on the formation of legal terminology is highly relevant. In this paper, a linguistic study is carried out, which examines the gender capacity of Anglo-American legal terminology. The role of extra-linguistic factors influencing the form and content of legal terms and concepts are identified. The method of continuous review of English-language legal texts, as well as English legal dictionaries, revealed gender-marked Anglo-American legal terms and terminological notions. The result of the research is the definition of gender as a factor fundamental for the formation of Anglo-American legal terminology.
Keywords: legal terminology, legal notion, gender, gender bias, gender identity.
ГЕНДЕРНАЯ СПЕЦИФИКА
АНГЛО-АМЕРИКАНСКОЙ ЮРИДИЧЕСКОЙ ТЕРМИНОЛОГИИ
Волгина Елена Валерьевна, кандидат филологических наук, доцент, доцент кафедры
иностранных языков, Саратовская государственная юридическая академия, volginalena@rambler.ru
Различные аспекты гендерной системы влияют на специализированные области языка.
Юридическая терминология не является исключением, поскольку закон регулирует
обширные сферы общественной жизни. Междисциплинарный характер гендерных
исследований обосновал необходимость лингвистической компетентности для изучения
гендерной конструкции, что породило самостоятельную дисциплину - лингвистическую
гендерологию. В этом контексте проблема влияния гендера на формирование
юридической терминологии является весьма актуальной. В данной статье проводится
лингвистическое исследование, в котором рассматривается гендерная специфика англо-
американской юридической терминологии. Выявлена роль экстралингвистических
факторов, влияющих на форму и содержание юридических терминов и понятий. Метод
непрерывного просмотра англоязычных юридических текстов, а также англоязычных
юридических словарей выявил гендерно маркированные англо-американские
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ISSN 2658-5138 Язык науки и профессиональная коммуникация. 2022. № 1 (6) юридические термины и терминологические понятия. Результатом исследования стало
определение гендера как системообразующего фактора при формировании англо-
американской юридической терминологии.
Ключевые слова: юридическая терминология, юридическое понятие, гендер, гендерная
дискриминация, гендерная идентичность.
Introduction
Modern terminology faces many tasks, and one of the most important is the study of the formation and development of terminological systems. Understanding the fundamental features of terminological systems will allow developing detailed recommendations for their improvement and further use [10]. The field of legal terminology is, first of all, a system of units used to express concepts related to the public and private life of a person, the rules and norms for regulating relations between people, between a person and society. While common words, as a rule, are ambiguous and emotionally colored, the area of use of terminological units is limited. Thus, legal terms are assigned to the legal branch of knowledge and are codified in the texts of laws.
In modern English, the category of gender is not represented as a grammatical system; either lexical means or methods of word formation or word composition are used to denote gender. Generic classification is associated with an indication of belonging to a particular biological sex. This or that subject/object is endowed with masculine or feminine features in the minds of people, which makes it possible both to use the referential parts of speech - pronouns - in relation to the mentioned objects, and to coordinate their form with the form of the verb-predicate.
The development of the English language from synthesis to an analytical system is an example of how the category of gender is being transformed: it is rethought, acquiring additional features. An indication of gender differences is, nevertheless, necessary for any language, and the erasure of formal differences leads to the need to preserve and consolidate such a category as the opposition of the sexes in a different way: in the absence of a morphological criterion for the distribution of lexical units by gender, a semantic criterion comes into force. The focus of researchers is the principle of gender division, the definition of masculinity and femininity and an indication of their hierarchy. Despite the fact that in recent years there has been a trend towards the introduction of new norms 80
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ISSN 2658-5138 Язык науки и профессиональная коммуникация. 2022. № 1 (6) of language practice to level gender marking in official business and scientific styles of speech, there are gender-marked units in legal terminology, which are the material of this scientific study [11, 17].
1. Statement of the problem
Today, the concept of gender identity is interpreted by legal documents quite broadly. This concept has gone beyond the designation of men or women and includes a wide range of identities. The Yogyakarta Principles, international human rights principles revolving around sexual orientation and gender identity, describe gender identity as “each person's presentation of the person's gender through physical appearance – including dress, hairstyles, accessories, cosmetics –
and mannerisms, speech, behavioral patterns, names and personal references” [7].
It should be noted that at present secular law more and more often tends to ignore the prohibitions imposed on a person by spiritual law, which asserts that the basis of the marriage union between a man and a woman was laid at the Creation of the world. The Torah (Bereshit 1:27) says about this: “And G-d created man in His image; in the image of G-d He created him; He created them male and female”
[12]. Secular law dominance in defining who and what a person is, has resulted in the appearance along with representatives of the traditional male and female gender, of many other gender identities including transgender, gender neutral, non-binary, agender, pangender, genderqueer, two-spirit, third gender, and all, none or a combination of these.
It is important to note that there are still countries where homosexuality is considered an abomination incompatible with morality, which is consistent with the law of the Torah, chapter Vayikra, 20:13: “If a man lies with a male as one lies with a woman, the two of them have done an abhorrent thing” [21]. However, because homosexuality is widespread and practiced by a large number of people, state after state recognizes same-sex marriage. In the USA, some states explicitly prohibit discrimination on the basis of gender identity [7].
American law texts use the term gender bias, which broadly refers to a person receiving different treatment based on the person’s real or perceived gender identity [6].
The gender neutrality of the text of the law is guaranteed by the inclusion of a clause on the unacceptability of gender discrimination. Let's consider this provision on the example of the terminological notion the best interest of a child.
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ISSN 2658-5138 Язык науки и профессиональная коммуникация. 2022. № 1 (6) The language of law, especially legal definitions should strive, as far as possible, for clarity and explication of all possible elements of the concept.
Despite this, almost all scientists point out such a feature of English legal terminology as abstractness and vagueness of some legal concepts and categories, which creates ambiguity in legal texts even when using highly specialized terms.
One of such concepts is the terminological notion of the best interest of a child, which is central to the family law, but in many ways contradictory and controversial. The interests of the child play a paramount role in shaping the rights and obligations of parents. When considering cases of guardianship, adoption, etc.
courts follow the principle “the best interest of a child”. The problem of this concept is related to how the interests of the child should be correlated with the interests of the father, mother, government and society as a whole.
As courts continue to give preference to the mother when awarding custody, thus perpetuating the traditional “mother as a caregiver” stereotype, the application of the “best interest of a child” principle has historically influenced case outcomes in favor of the mother. Gender bias can affect the atmosphere in courtrooms, the presentation of cases, the decisions of judges, and even whether cases come to court. In order to minimize the biased attitude of the courts towards discrimination based on gender, new amendments are included in the texts of laws. As a result, the semantic content of the terminological notion “the best interest of a child” has changed after an amendment was added to the text of the law. This is California Family Code § 3011 under which, “the court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child”.
(Amended by Stats. 2021, Ch. 768, Sec. 1. (SB 654) Effective January 1, 2022.) [5].
The purpose of this article is to study and describe gender differences in the semantic structure of Anglo-American legal terms. The main focus of the study is the traditional gender asymmetry of the categories of male - female, presented in legal terminology. Due to the fact that the concept of gender has expanded its meaning, as mentioned above, we also consider terminological notions, the meanings of which have been transformed under the influence of the policy of gender equality in a broader context.
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ISSN 2658-5138 Язык науки и профессиональная коммуникация. 2022. № 1 (6) 2. Methods and materials
Many researchers equate the meaning of the term with the concept and indicate that the concept becomes available for perception with the help of a term -
a verbal nominative unit or with the help of a definition - a phrase constructed in a certain way. A term names a concept and is constituted with the help of a definition, which makes it possible to speak about the definition of the concept and the definition of the term. It is the definition as an integral feature of the term that plays an important role in the selection of terminological vocabulary from the vocabulary of the language [9, 13]. Thus, the effectiveness of special communication is largely ensured through the use of terms that, on the one hand, accurately reflect the results of the experience and practical activities of people and record professional and scientific knowledge about the properties of the terminating objects or phenomena, on the other hand, through the definition that reveal their essential signs.
The interaction of social reality and legal terminology is two-way: public practice directly affects the formation and interpretation of legal norms, in turn, public life is directly or indirectly affected by these norms. We selected gender-marked units of the English and American legal terminological systems by the method of continuous review from English legal texts, as well as English legal dictionaries. Our study showed a close relationship of terms with the cultural component, as well as the ability of legal terms to reflect all changes, occurring in the political and legal culture of society.
In order to identify the gender component of the meaning, we use the method of component analysis based on the definitions of legal terms, supplemented by the method of contextual analysis, analysis of terms by direct components, as well as interpretative analysis of extralinguistic information.
A distinctive feature of legal terminology is that the linguistic meanings of terms, determined by the attitudes and values of the dominant social culture, may initially be gender-neutral, but under the influence of extralinguistic factors they can change their meaning. The main way of explication of the gender component of the meaning of terms is the specialization of the meaning of terms through a definition. Under the gender component, we understand the element of the meaning of the term, which is associated with the socio-cultural interpretation of the differences that exist between people of different sexes, and which is explicated in the definition of the term. Component analysis allows you to analyze 83
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ISSN 2658-5138 Язык науки и профессиональная коммуникация. 2022. № 1 (6) the constituent semantic components - semes, and the presence of a gender seme will indicate that the term is gender-marked, i.e. the concept denoted by this term is interpreted differently depending on the gender factor.
Within the framework of the group of terms under consideration, we single out gender-neutral units, the structure of which does not contain indications of gender, but which are associated with gender designations by mentioning belonging to a certain field of activity, occupation, etc., and gender-marked units containing an indication of feminine or masculine traits. As a rule, gender specificity is expressed in legal terminology through a definition.
3. Results
The specialization of the meaning of terms is expressed in the narrowing of the definition of the terminating concept. The process of narrowing the meaning is carried out in several ways. The most common way is to use marker words.
When referring to gender, the lexical meanings of terms are revealed in definitions containing marker words like: man, woman, male, female. Compare: coverture – “(of a woman) a state of being married” [2: 78] (the status of a married woman), where the definition contains an indication of gender and narrows the meaning of the term; indirect sexual discrimination – “an instance of sexual discrimination that is covert… An example would be where promotion is based on continuous employment, meaning that a woman taking maternity leave be less likely to get promoted than a man where all else is equal” [2: 152] (indirect sexual discrimination), where the definition states that it is women who are most often deprived of the possibility of promotion; molestation – “the act of threatening violent behavior towards a child or a woman, especially a spouse” [2: 194]
(harassment), where the definition indicates a threat of violence against minors or women; palimony – “the money that court orders to pay regularly to a woman with whom he has been living and from whom he has separated” [2: 213] (alimony), where the definition contains an indication that the amount is payable to the woman upon divorce; procurer – “someone who procures women [2: 236] (pimp), where the definition specifies that the acts are committed against women.
Let's take a closer look at the term prostitute. The California Criminal Code gives a gender-neutral definition of this concept: “offering to pay or accept money or something of value in exchange for a sexual act” [15]. However, the accepted designation of clients “johns” and the designation of a pimp middleman attract attention: “The law applies to both prostitutes and their customers (also known as 84
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“johns”). Some prostitutes also have middlemen, known generally as “pimps”
[Ibid.].
English law completely eliminates gender asymmetry in the definition of terms denoting sexual crimes. This is evidenced in particular by the definition of the term prostitute, in which there are no indications of signs of masculinity and femininity. Cf.: Prostitute is defined in Section 51(2) as: “a person (A) who, on at least one occasion and whether or not compelled to do so, offers or provides sexual services to another person in return for payment or a promise of payment to A or a third person; “prostitution” is to be interpreted accordingly”. Whilst historically, case-law and legislation detailed below used the female gender when setting out offences, for present-day purposes it should be noted that the law encompasses everyone” [16].
The narrowing of the meaning of a gender-neutral term can also occur through the use of generic pronouns and the explication of correlation with the masculine or feminine gender. Thus, the category of gender in English can be expressed through the ratio of words that do not have a formal gender expression with other words that have formal indicators.
In the professional sphere, the feminine gender feature contains nouns denoting certain professions, connected by common prototypical features, reduced from the concept of the feminine gender. These prototypical features are clearly seen in the context of sentences. A corresponding trend is found in dictionary definitions, as well as definitions contained in legal acts, in judicial proceedings.
The term nanny is noteworthy. The UK Children Act 1989 gives the following explanation of this term: “Where a person is employed as a nanny for a child, she does not act as a child minder when looking after that child wholly or mainly in the home of the person so employing her” [1]. This is a female gender role, and in the text of the law this provision is fixed using the feminine pronoun ‘she’.
Another example is the term solicitation: “the crime of encouraging or inducing another to commit a crime or join in the commission of a crime.
Solicitation may refer to a prostitute's ( or her pimp's) offer of sexual pleasures for pay” [18] (Our italics – E.V.). Noteworthy is the pronominal correlation of the term prostitute with the pronoun her.
The legislation should note the exclusive dominance of personal pronouns singular masculine. Some linguists consider this a sign that laws are written exclusively for male citizens.
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ISSN 2658-5138 Язык науки и профессиональная коммуникация. 2022. № 1 (6) In order to avoid gender asymmetry, the following comments are made in the prefaces of legal terminological dictionaries: “the use of the pronoun ‘he’ (rather than ‘he or she’) in entries has been adopted to simplify the constructions of sentences; it does not imply that the subject matter relates exclusively to males”
[4]; “Gender: A serious effort was made to provide nonsexist terminology. In the event that masculine nouns and pronouns have been used, they are intended to refer to both men and women and should be so read. Many terms, however, are of feudal origin and remain masculine in standard modern language. For example, the term “and his heirs” is a basic one in property law and thus has not been altered” [8]. Thus, the masculine pronoun is used generically, in no way emphasizing the dominance of men over women. It should be emphasized that those authors are right when they point out that the use of the phrase ‘he or she’
(he or she) often makes it difficult to understand, detracts from the clarity of the document and distracts the reader. We suggest that the absence of any pronouns can make the style of a legal document gender-neutral, for example: The trustee who makes that kind of investment is in breach of a duty to the beneficiary.
The third way of narrowing the term is the lexical way of expressing the idea of female or male, and it is the least common, since the number of terms which lexical meaning includes female/male semes is small. Nevertheless, consideration of the semantic attribute of gender seems important for identifying gender-relevant terms denoting females and males.
It should be noted that some terms may be gender-neutral at the formal level, but have gender-specific content. For example, the term parental responsibility.
English law states: “A mother automatically has parental responsibility for her child from birth” [14], i.e. the very fact of the birth of a child imposes on the mother the duties of a parent, while certain conditions are established for the father to establish such responsibility. Cf.: “A father usually has parental responsibility if he’s either: married to the child’s mother; listed on the birth certificate (after a certain date, depending on which part of the UK the child was born in)” [Ibid.].
This group of terms also includes the concept of responsibility order (an order on duties/responsibility), which is used only in the following meaning: “An order made by a court conferring parental responsibility on the father” (an order to assign parental responsibility to the father); as well as parental responsibility agreement: “These Regulations prescribe the form for, and manner of recording of, an agreement between the parents of a child that the father is to have parental 86
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ISSN 2658-5138 Язык науки и профессиональная коммуникация. 2022. № 1 (6) responsibility for the child, within the meaning of section 3 of the Children Act 1989” [19], where the mother's consent to take responsibility for parental responsibility appears to be considered automatic and therefore not mentioned, while the father must explicitly express his consent, following the letter of the law.
Along with a broad or gender-neutral meaning, there is a narrow (gender) understanding of the same term. An example of a broad (a) and narrow (b) understanding is the term abduction: a) “Broadly, the criminal and tortuous act of taking and carrying away by force” [8: 1]; b) In respect of the taking away of a girl under the age of 16, it is a statutory offence” [3]; “the criminal taking away of a person by persuasion (convincing someone-particularly a minor or a woman-he/she is better off leaving with the persuader). Originally abduction applied only to protect women and children as victims” [20]. As follows from the definitions of this term, along with the abduction of a person, there is a special crime, namely, the abduction of a woman. However, in many states, this concept has begun to include a man as an object of a crime. Cf.: “Currently in most states it can also apply to an adult male” [Ibid.].
The definition of the term safety at work includes, along with a broad, narrow interpretation of this term, which is expressed in the protectionist policy of the UK
labor law for women: “The Employment Act 1989 contains legislation for the protection of female workers. It is prohibited to employ women in a factory within four weeks of childbirth; to women in a range of processes involving lead or lead compounds; and to women in a range of processes employ the pottery industry.
There are also restrictions on women working on ships and airplanes during pregnancy” [4: 443].
4. Conclusion
The specialization of the meanings of the terms suggests that gender mainstreaming is relevant for a number of legal phenomena related to labor, criminal and family law. The presence of a gender-marked meaning of the term, along with a broad or gender-neutral one, is the result of the influence of extralinguistic factors: many crimes are committed more often against women (abduction), women's reproductive function determines their rights in labor legislation (protection of female workers), and the law reflects these differences.
The phenomenon of polysemy used in legal terminology contributes to the formation of a broad (without gender marking) and a narrow (with gender marking) meaning of the same term. 87
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ISSN 2658-5138 Язык науки и профессиональная коммуникация. 2022. № 1 (6) Thus, gender can be considered as a system-forming factor for the terminology of Anglo-American law on the following grounds, since it determines the semantic variation of the terminological unit (polysemy) and the use of linguistic resources of the English language for the explication of gender semes of the term.
References
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УДК 81'42
DOI: 10.24412/2658-5138-2022-6-89-104
ББК 81-5
ЛИНГВИСТИЧЕСКИЙ И ПРАВОВОЙ СТАТУС ТЕКСТОВ РУНЕТА, ДИСКРЕДИТИРУЮЩИХ ИНСТИТУТ СЕМЬИ И МАТЕРИНСТВО
Игнаткина Анастасия Львовна, кандидат филологических наук, доцент кафедры
английского языка ФГБОУ ВО «Саратовская государственная юридическая академия»; Россия, г. Саратов, ул. Вольская, 1; anastasiaignatkina777@gmail.com Эмпирическое исследование, представленное в данной статье, направлено на изучение
характерных особенностей дискурса пропагандистов идеологии чайлдфри в России. В
настоящем исследовании мы используем термин чайлдфри как общий для всех
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