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Gorbatenko O. G.
SPECIFIC FEATURES OF LANGUAGE AND LAW
16. РАЗНОЕ
16.1. SPECIFIC FEATURES OF LANGUAGE AND LAW
Gorbatenko Olga G., PhD in humanities, associate professor of foreign languages department
Work place: Peoples' Friendship University of Russia Law Institute
Annotation: The research is dedicated to specific features of language and law.
The article is aimed at ascertaining the interaction between language and law. The current interest of the article is that language and law are characterized in their interaction context. The up-to-date legal realities apparently demonstrate that legislation development can't exist without the language. Law development is impossible without right and proper language use. It is underlined that legal theory and practice are concerned with particular tasks of certain judicial cases.
The novelty of the article is that law is analyzed within the frames of linguistics. Particular emphasis is laid on the fact that applied linguists specializing in law should be aware of legal details in order to introduce them in the particular language with the purpose of avoiding ambiguity in law.
The theoretical value of the article is that the theory of law and language interaction has been the focus of the authors' attention. The article may be beneficial for lawyers and linguists. The lawyers may enrich their knowledge in linguistic sphere. Linguists may enhance their role in improving laws.
Keywords: law, ambiguity, applied linguistics, legal theory and practice, law cases, to violate, language.
ХАРАКТЕРНЫЕ ЧЕРТЫ ЯЗЫКА И ПРАВА
Горбатенко Ольга Григорьевна, кандидат педагогических наук, доцент кафедры иностранньк языков Место работы: Российский университет дружбы народов Юридический институт
Аннотация: Научная работа посвящена характерным чертам языка и права. Статья нацелена на анализ взаимосвязи языка и права. Актуальность статьи заключается в том, что язык и право анализируются в свете их взаимодействия. Современные юридические реалии явно демонстрируют, что развитие законодательства не может происходить без языка. Невозможно совершенствование законов без применения языка надлежащим образом. Подчеркивается, что правовая теория и практика затрагивают особые задачи конкретных судебных дел.
Новизна статьи заключается в том, что право анализируется в рамках лингвистики. Особый акцент делается на то, что прикладные лингвисты, специализирующиеся в праве, должны быть осведомлены о юридических деталях с тем,
чтобы представить их на соответствующем языке, чтобы избежать двусмысленности в праве.
Теоретическая значимость статьи заключается в том, что внимание автора сфокусировано на теории взаимосвязи языка и права. Статья может быть полезной для юристов и лингвистов. Юристы могут обогатить свои знания в области лингвистики. Лингвисты могут повысить свою роль в совершенствовании законов.
Ключевые слова: право, двусмысленность, прикладные лингвисты, правовая теория и практика, юридические дела, нарушать, язык.
It is widely evident that language and law are neighboring contiguous subjects. Language and law are closely related to each other. Law itself can't exist without the language, whereas the language needs some disciplines to be described by means of language. It is quite obvious that contiguous disciplines mentioned above could promote each other's development. Lawyers as well as linguists may see how the directions from theory to practice in their own area are concerned with the practical importance to another area. These two spheres have much in common. The neighboring disciplines are interrelated with each other. The study of legal theory and particular judicial cases are a contributory factor for the research, and linguists have been realizing this possibility over a long period of time.
The up-to-date legal realities demonstrate that linguists are participating in legal procedures as attorney assistants and as experts. Nevertheless, it has always been a stumbling block to persuade the lawyers that specialists in linguistic field can also be a contributory factor. Lawyers often face issues regarding legal decisions, statutes, particular cases and laws. Specialists in linguistics may contribute a lot in the outcome of court decisions. In view of this, linguists should grasp not their own sphere alone but also professional vision of law. If specialists in linguistic field tend to add linguistic contributions to law development, they should be aware of not only the lawyer's values and beliefs but also see lawyer's problems and speak their language.
Language and law are profoundly concerned with precision, offering, promising, ambiguity, metaphor, defining. Lawyers are used to handling details of legal cases using legal language. Specialists in linguistics deal with only language related issues. Linguists may often seem irrelevant for lawyers' particular cases whereas lawyers may be irrelevant for linguistic vocabulary. Significant weight should be attached to avoiding both extremes.
The possibility of members of the science to see how its theory and research are related to the insistent issues of the real world is one of the contributions to science.
The route from the law acknowledgement to real application usually remains inside the individual disciplines some-
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times coping with the profound ditches that academic spheres build up around themselves.
Experts in the field of applied linguistics do not go, as a rule, beyond the tasks close to the linguistics properly, such as teaching and language learning. In these circumstances no applied linguistics has been parameter for most specialists to transfer their sphere into other areas, such as advertising, biology, medical communications or engineering. Moreover even law science tend not to venture to transmit its field into linguistic sphere.
Legal theory and practice are concerned with particular tasks of certain judicial cases. It is not typical of law to have recourse to practitioners, except as an expert witness in cases dealing with medical, biological, physic and other technical spheres.
The use of generally accepted regulations of universal law should not be viewed separately from the international legal system. General standards of human rights are a type of universal norms of International law. There are imperative universally recognized rules that do not have this characteristics.
The Declaration on Principles of International Law concerning Friendly Relations and collaboration among states in accordance with the UN Charter 1970 implies that the above principles are interrelated and each principle should be considered in the context of other principles when they are interpreted and applied.
Thus, according to general International law the use of any principle of International law, if such actions violate other principles of International law is inadmissible. Hence the state when performing its activities should not give its priority to one of the generally accepted principles to the detriment of other principles.
The problem of correlation and interaction of International and national law is seen as one of the most urgent and complicated problems in jurisprudence. Its practical importance not only for classical subjects of International law but for subject of interstate law - state bodies, legal entities and individuals involved in implementing International legal regulations is on the rise.
Mutual dependency and integrity of today's world insures that national law system could interact with each other and also with law system of International community as a whole. The world legal complex development incorporates national legal system along with International law.
International treaties and legal acts tend to interact with national legislation. The laws and other legal acts provide for provisions for collective use of interstate and International regulations and for preferential use of International law in case of controversies.
Dispositive regulations of general International law are empowered with enforcement in its entirety and are legally binding. The state can't decline as well as violate them through making the controversial law.
Generally accepted rules are highly irregular in its composition. Significant weight among them is attached to impera-
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tive rules of International law. If such category as generally approved rules of International law is revealed at doctrinal level and interpreted doctrinally whereas imperative rules possess set legal status that is set out in article 53 of Vienna convention for International treaties 1969. [3]
The efficiency of law enforcement and court procedural practice largely dependent upon the effectiveness of the rules that are applied in each case. These concepts closely overlap. They are also independent and justify each other. The optimum law is the perfect law that implies it as being adopted in accordance with the Constitutional Law «On statutory legal Acts», and it meets all the requirements under the law.
Article 1, Constitutional Act provides a definition of the statutory Act, which is an official document of the specified regulations adopted within the competence of the authorized state body or by referendum, in compliance with the established procedure of the Constitution of Azerbaijan republic, containing generally binding rules of conduct allowing for an indefinite number of persons and multiple application.
There are particular requirements for statutory Acts from both legal and linguistic points of view. Statutory Acts should be in conformity, logically shaped and in line with legal technique.
When setting out legal regulation of statutory Act we should avoid both evasively generalized and detailed interpretations as well as duplications of writs and their multiplicity on the same issue. The title of the statutory Act (its structural element) should be concise and carefully formulated. The title of the statutory Act should reflect its main content (structural element).
The statement of statutory act regulations should be concise, preferably positive and set out at present. Terms and definitions applied in the statutory Act text should be available for understanding and in close connection with each other.
The distinction between two forms of the statutory Act efficiency in legal literature is as follows:
- when it has a direct influence on the regulated public relations;
- by way of subjects activity that apply statutory Act, for example public relations regulations specified by law or any other statutory Act administered by the judge, investigator, prosecutor.
In the first case when the use of the statutory Act is implemented beyond the subject's activity, for example the banning rules of the Criminal code deter many citizens from committing a crime. The preventive rules of criminal procedural legislation possess preventive influence: threat of arrest makes witnesses appear in court to give witness statements. The threat of arrest in case of failure of defendant's written promise to leave his / her residents may induce him/her not to leave the place where the process is carried out and to appear in court when required.
The improvement of criminal and procedural legislation is defined by lack of gaps, completeness of corpus delicacy, non-controversy, lack of officials discretional powers, indefinite phrases such as «in dispensable case», «as a rule».
Gorbatenko O. G.
SPECIFIC FEATURES OF LANGUAGE AND LAW
The typical factors of abuse in statutory Acts connected with state organs' powers implementation are as follows: the scope of discretional powers, the definition of powers as dispositive probability, high requirements to exercise individual's rights, the abuse of legal entities and individuals' rights by State bodies, unsubstantiated alteration in scope of rights, executive powers for legal regulation arisen from the law, legal and linguistic abuse, adoption of statutory Act beyond the frames of state bodies powers, bridging the gaps in the law by state body's statutory Acts.
Discretional powers in statutory Acts entitling the officials to act at his/her discretion in decision making shouldn't be exercised unwarrantly.
Failure to set decision making terms or certainty of terms, uncertainty of conditions and grounds for decision making duplication of State bodies' powers as the result of the discretional powers extensiveness in statutory Act are not allowed. The State body's rights and duties constitute its powers and in view of this the body's rights can't be defined as any activities depending upon the particular agent's opinion, dispositive probability.
The definition of states body's powers specified by statutory Act in generalized form and the use of such phrases as the body may exercise, «a rule», «when required» and other similar phrases are not allowed. The excessive or unnecessary requirement in statutory Act, the presence of incomplete list of documents submitted to individuals and legal entities or grounds for refusal based on those documents within the frames of administrative procedures being commenced, the use of subjective phrases particularly to refuse the right being exercised are not allowed. The creation of discretional powers and dispositive probabilities in statutory Act by undue individual's and legal entities' rights regulations are not allowed.
The selecting of only alternative right instead of flexible methods and terms to realize activities within the frames of administrative procedures being commenced towards individuals and legal entities is effected at the official's discretion. Benefits being not regulated by the statutory Act as well as the possibility to establish restrictions and limitations for officials are not allowed in accordance with statutory Act.
Excessive details in rules of law should not lead to the interference between the executive and judicial power. In case of the absence of the relevant law the legal regulation of the statutory acts issues as well as the establishment of generally accepted rules of conduct by other Acts are not allowed. The laws should provide for abuse factors related to the existence of legal gaps which are as follows: the existence of gaps in the legal regulation, lack of administrative procedures, competitive (auction) procedures, prohibitions and restrictions for officials in a particular sphere of activity, uncertainty about the responsible official for an offence, the uncertainty of control over gov-
ernment agencies, officials, including public control, breach of information transparency regime.
The statutory Act should reflect the scope of responsibility in regard to officials' breach of law in accordance with Statutory Acts as well as complaints against officials' activity (inactivity).
The Constitutional Law should specify regulations ensuring control over the most important state body's (official's) fields of activities as well as public control, regulations ensuring State bodies' information transparency in statutory Act. The determination of information for individuals and legal bodies that is of some importance for decision making on a particular issue provided that the information is confidential and the uncertainty of information acquisition procedure are not allowed.
When interpreting statutory Act much attention should be drawn to detailed examination and classification of rules content as well as to functional and other relationships with other rules, which regulate different aspects of identical forms of public relations. After the statutory Act was interpreted no alterations in the interpreted Act are allowed. Extended and limited interpretations are allowed only when the distinction between the text and the value of the statutory Act is clearly seen. The explanation of the Statutory Act is not subject to interpretation. [5]
Law and language research is quite specific. Law and language research emanates from linguistic field as well as from other social sciences. Some scientists focus on language and in this case, the law offers proper data for research in linguistics area and in language tests theory. For some researchers law becomes the main focus and in this case, language becomes a mechanism for analyzing the legal process and for developing the law and theory system.
Significant weight may be attached to disciplines of sociology, anthropology, psychology. Language works within the legal system functions as a tool for analyzing social interactions, cultural traits, and psychological processes. There are topics that are directly related to the language of law that have been of linguists' interest.
Legal language has evolved throughout centuries and has particular characteristics, some of which may be too complicated to comprehend especially in legal documents. Typical features of legal language encompass old-fashioned words, legal jargon, technical terms, vague words, the use of «shall2 in direct sense, specific use of the model verb «shall» to express duty or obligation. They cast light on how this legalese come into existence and how it differs from «generally English». Scholars have drawn their attention to the legal language. They consider legal language as a linguistic phenomenon, describing its development and marking the specificity of the sentence structure and vocabulary.
The historical evolution of legal English dates back to Anglo-Saxon period and lasted through the Middle English period up to the present day. French and Latin contributed a lot to modern legal English. Professor of law Tiersma
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explained why the language of law was often non-understandble for the layperson. He believed that the legal language was non-understandble for non-lawyers because it was full of redundancy, specific vocabulary and wordiness.[2]
Moreover it usually includes complex, lengthy and unusual sentence structure. In order to reduce the negative effects of the legal vocabulary there has been a growing trend towards «plain English». A consumer campaign was organized to solve legal issues for the public. A consumer movement activity was aimed at simplifying the legal language that ordinary people could understand documents they have to sign, such as insurance policies, promissory notes, treaties or apartment rental leases. The consumer campaign had contributed a lot to the process of litigation.
Lawyers don't always comprehend the information provided to them by judges. They are not able to percept instruction in its entirety. One of the reasons for this is due to the fact that part of the information was missing during the translation process. The problem is due not so much to lexicon but in most situations to specific kinds of grammatical interpretations, too many passive constructions, substantives and numerous negatives. But at the same time particular vocabulary and untypical sentence structure make a contribution to the specificity of legal writing. Both these components, grammar and lexicon, are inseparable part of the language.
Both these elements are needed in order to understand, to write and speak language well. Even perfect knowledge of lexicon will make a sentence inappropriate without the rules of grammar; otherwise it would be impossible to put the words or to attach endings to them in the correct way. On the contrary even proper use of grammar with a detailed knowledge of lexicon will make a person incompetent of the language.
In legal language the meaning of the words may be unclear or vague which may lead to ambiguity in interpretations which is difficult to understand. When, for a example, controversies in understanding the contract are uncon-trorable parties may terminate the contract. It means that when a failure to understand arises then the contract under dispute constitutes ambiguity.
It is extraordinary enough that the «term» ambiguity may interpreted in different ways by individuals depending on their own perception of the environment. In the broad sense of the word «ambiguity» may occur in any sphere of human activity. It often depends on how the speaker uses the language and how the listener understands the language. Grammarians and linguists have aptly pointed out that a group of words may be involved in more than one grammatical analysis. [1]
Jurisprudence refers to a number of intensive linguistics disciplines. In view of this mastering oral and written language is an essential feature of lawyers' proficiency. Language and speech are of crucial importance in the lawyers' professional activity. [4]
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Thus, the up-to-date legal realities apparently demonstrate that legislation development can't exist without the language. Law development is impossible without using language correctly. Neutral style of the language of law prejudge the interpretation of specific linguistic means of rule regulations expression by: rejecting rhetorical methods of strengthening or weakening expression in the absence of legislative text metaphors, hyperbole and other means of speech and brightness of expression in legislative texts.
Reference list:
1. Sanford Schane and Forward, Roger W. Shuy , The language and the law, 2006.
2. Tiersma, Peter «The language of perjury: «literal truth», ambiguity, and the false statement requirement», 63 Southern California Law Review, 1990.
3. Vokhmyanin D.V. Presence of constitutions as the universal phenomenon in state law //Business in the law.-2013.№6.
4. Khromov S. S., Zvereva E. N. Philological aspect of legal University education on jurisprudence as a successful higher education renew in Russia// Dynamics of language and cultural processes in Russia of today.—SPb.: R0PRYAL.—2014.
5. Shakhbanova A. I. Right ratio (the optimum law) and effective procedural activity of court//Business in the law.-2013.№6.
РЕЦЕНЗИЯ
на статью О.Г. Горбатенко «Specific features of language and law» Рецензируемая статья посвящена характерным чертам языка и права. Цель статьи - анализ языка и права в плане их взаимодействия. Тема актуальна, поскольку существует явная взаимосвязь между языком и правом, и анализ такого рода способствует правильному написанию и толкованию законов, судебных решений. В статье подчеркивается, что специалисты в области лингвистики могут внести большой вклад в принятие судебного решения.
Новизна статьи заключается в том, что нормативные правовые акты характеризуются как с юридической, так и с лингвистической точек зрения. Автор указывает, что термины и понятия, используемые в тексте нормативного правового акта, должны быть понятными и однозначными.
В статье рассматривается ситуация, когда участники процесса не понимают предоставленную судьями информацию. Причины этого следующие: слишком много пассивных конструкций, множество отрицаний. Автор справедливо отмечает, что даже знание лексики в совершенстве сделает предложение неправильным без знаний грамматики.
Теоретическая значимость статьи заключается в том, что она может быть полезной для изучения взаимосвязи языка и права. Материалы статьи могут быть использованы на практике юристами и лингвистами.
Считаю, что работа О.Г. Горбатенко Specific features of language and law отвечает академическим требованиям к научным работам и может быть опубликована в рецензируемом журнале.
Доктор филологических наук, профессор, заведующий лабораторией теоретической и прикладной лингвистики Российского Экономического Университета им. Г.В. Плеханова
С.С. Хромов
