A Stylistic Analysis with a Focus on Lexical (Binomial) Expressions
Communication is a means of transmitting information, there are several ways of how people can do so. Language as an instrument of communication. The language of law is the study object of this thesis. Style is the study object of stylistics, grammar.
| Рубрика | Иностранные языки и языкознание |
| Вид | учебное пособие |
| Язык | русский |
| Дата добавления | 14.03.2014 |
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Turning the Books of the Law and all Process and Proceedings in Courts of Justice into English' was passed.
Towards Modern Legal English
Reading legal records of earlier centuries and comparing them with present documents, one will certainly find some features and trends of form and content notably different. In spite of that, legal language has always been complex and very complicated, thus perplexing every reader in every time. The basis and principles of drafting various statutes, codes and acts in the fifteenth century were dissimilar from those employed in the nineteenth century and today. The subject matters “were expressed in a manner where the narrative element, besides the directive one, was still more marked than three or four centuries later” (ibid: 58). Lawyers and clerks were employing a very elaborate verbal style, the motive being the fact that they were sometimes paid according to the number of pages they had written. In this way legal documents were issued until the beginning of the nineteenth century. A new idea of the layout brought about some changes in the form of the statutes several decades later. The changes for a modern format were very helpful for the reader. In a very general sense, the one-page long sentences became less frequent and texts were visually separated into sections and subsections. However, Hiltunen (ibid: 59) highlights one aspect - although legal texts were made clearer for the reader, a new obstacle came to existence.
Because the text is formally structured in a given way through layout, its component parts (e. g. conditions, insertions etc.) can be made more complex, on the assumption that the relationship with the other parts of the sentence remains clear. Because of this they can easily grow even more complex in terms of both quantity and quality.
In the course of the nineteenth century special guidelines began to emerge on how to draft laws. These are, in many cases, followed nowadays.
The Language of Simplified Legal Documents
Legal documents are constantly labelled as very complicated, perplexing the layman, thus difficult to understand. Hiltunen (1990: 103) explains that the idea of making legal language is not new, but “it has gained its momentum in the last few years, especially in the United States. ” It was the consumer movement that triggered the voicing of demands to draft legal and other official documents in plain and understandable English. By introducing a promissory note in `Plain English' in 1975, Citibank in New York made the first move. Many financial institutions copied the step. Soon, it was made compulsory that consumer agreements must be written in simplified language. This measure was followed by another one - in 1978 a bill imposing that official agreements should be written in `clear and coherent manner using words with common and everyday meanings' was passed. Since then, similar laws have come into effect in several other American states. Not surprisingly, the legal profession has not welcomed this reform. Hiltunen (ibid: 104) gives the reason.
Some have contended that it is not really possible to write simplified legal documents that would be as precise, comprehensive and unambiguous as those written in the traditional legal language, and that a considerable number of new lawsuits are likely to arise due to the unpredictable consequences of using plain language.
The following are some standard criteria on writing simplified and easy-to-understand legal documents.
Avoid long, archaic and learned words and use common, everyday expressions; however, it may be difficult to distinguish between an `easy' or `difficult' word in a particular context. Also, some technical terms cannot be avoided even if a text is written in plain language.
Make sentences short where possible and get void of all superfluous terms, though Hiltunen (ibid.) warns that “the role of sentences should not be overemphasised…long sentences cannot be shortened mechanically”.
The active voice is preferred to be used instead of the passive. However, much depends on the context.
Documents should be made more personal, i. e. the use of personal pronouns is desired on the account of nouns when they refer to the parties of an agreement.
Verbs are recommended to be in the present tense, in the indicative mood and, if possible, they should be finite rather than participles. Also, if it is possible to express the meaning in both positive and negative ways, the former should be used.
The above listed criteria aim at making legal records comprehensible to ordinary people. However, the task remains uneasy because successful application of the criteria presupposes considering the form of the language in close interaction with the context at large.
Summary
This chapter explored the factors that have largely contributed to the present-day character of English legal documents, in particular the structural complexity. Due to the influences mentioned above, English legal vocabulary is multi-layered in its origin, the sentences are complex and even the layout of the documents carries the traditional traits. This chapter shows that these typical features of English legal language are deep-rooted in the past. The way in which legal documents were drafted centuries ago are still applied today for the sake of habit and tradition and for the need of precision. Sometimes, though, there may be a tendency to overcome such reverence to tradition and make legal English more comprehensible to the layman. All these features and tendencies are further analysed, discussed and commented on in the analysis in the practical part of this thesis.
On the issue of binomials
Terminology and Definitions
All speakers of English use sequences of words such as all in all, again and again, before or after, control and discipline, fair and true in their everyday speech. Nonetheless, ordinary speakers are not aware that they, fairly commonly, use expressions in linguistic sphere known as binomials, binomial expressions or doublets. Citing Gustafsson (1975: 9), the term coined by Yakov Malkiel is defined as “a sequence of two words pertaining to the same form-class, placed on an identical level of syntactic hierarchy, and ordinarily connected by some kind of lexical link”. Gustafsson further explains that a binomial consists of two members which are in parallel relation to one another. She distinguishes between irreversible binomials, if the order is fixed, and reversible ones, if it is not. Another distinction is made between formulaic and unformulaic binomials, the difference defined as “the former are permanent and fixed combinations in the language, while the latter are temporary but fill the semantic and syntactic requirements” (ibid.).
There are other expressions referring to or used in connection with the term of binomials. In linguistic studies words like hendiadys (a classical figure of speech), repetition, and intensification may be found. In a general sense, some do not cover all cases of binomials (e. g. that of hendiadys) ; on the other hand binomials are considered “only one of the several phenomena of intensification” (ibid.). Even various modifications of word pair also appear - paired words, repetitive word pairs or twin formula (the German term in translation). Another term that appears is that of alliterative phrase found in a study of the alliterative poetry in early English. Lastly, Gustafsson (ibid: 10) relates another linguistic aspect to the term.
Studies in reduplicative words often touch upon binomials, too, in making a distinction between the two types…. The tick-tack type should not be confused with binomials. Biese defines reduplicatives as rhyme or ablaut compounds where one of the members is a varied repetition (variierte Wiederholung) of the other. In a reduplicative only one of the elements is meaningful, while in a binomial both members normally have a meaning and are capable of occurring alone…
The psychological basis of binomials is necessary to be noted. The phenomenon of binomials can be ascribed to the “tendency of successive thinking. By using paired expressions the speaker may split up his thinking into smaller units and thus avoid giving too much weight and complexity to some part of the sentence” (Gustafsson 1975: 11). There are also theories presented by other linguists. Leisi (1947: 14-15) emphasises that A and B must refer to the same thing. Consequently, the word pair has only one referent, but two symbols. The speaker uses a binomial because he views the referent from two different angles and therefore needs to convey his thoughts by applying two symbols. Koskenniemi (1968: 108-112) also argues that “there are referents which are inherently dual in character. They may be things composed of two parts or containing two poles. The duality of the referent easily calls for the use of two symbols”. Natural and logical may seem two more purposes. The first being the tendency to emphasis and intensity (the speaker wants to make an impression on the hearer), and the tendency to aesthetic expression and clarity representing the second (Leisi 1947: 4-7). The existence of French-English word pairs may be explained as a habit in early medieval English to use a French word side by side with its native synonym because the latter served “more or less openly as an interpretation of the former for the benefit of those who were not yet familiar with the more refined expression” (Gustafsson 1975: 11). The above stated theories, though, may be only a minor aspect to explain the use of binomials.
The Origin and Use of Binomials
In samples of Anglo-Saxon codes one may find the so-called “poetic adornments” (Hiltunen 1990: 25), i. e. expressions that involve alliteration, assonance and parallelism, such as
on life ge on legere `in life and death' manslagan and manswaran `murder and perjury' sib and socn `peace and agreement'
These word pairs have been regarded as evidence of the role of oral transmission of law in the earlier history. The `poetic adornments' would have served as mnemonic devices to remember a legal text easily. On the other hand, other purposes may appear relevant, for instance to arouse emotional appeal in solemn recitation of the law in situations where the speaker was not only to state the law but also to extract obedience to it. Another reason may be the fact that earlier laws were very simple, “almost laconic statements, where each referent is represented by one word. In the later laws, the picture is more complicated, because the scope of the statement is usually wider. Therefore, they also tend to be longer and more inclusive. ” (Hiltunen 1990: 26)
In the Norman period, binomials re-emerge. So numbers of collocations of two, sometimes even three, more or less synonymous words that can be found in modern legal documents stem from this time for some of the French words became equivalents of the original expressions and were used simultaneously in pairs. Some linguists agree that a certain amount of the binomials developed into technical terms, so it may not be easy or possible to convey their meanings by a single word. Moreover, they acquired a new character through borrowings and settled in legal English as one of its typical features.
Linguistic Characteristics of Binomials
Syntactic Aspects
Gustafsson (1975: 13) categorizes the description of binomials and their relationships in terms of three categories, each of which is further divided into relevant subcategories. The following outline is based on her study and the materials of other linguists, Deutschbein (1931) and Spitzbardt (1956) among others, to whom she refers to in her work. The syntactic character of binomials is largely discussed in two terms: 1. coordination and paratactic constructions, and 2. intensification.
English has a tendency to nominalization, particularly that of verbs. As a result, the structure of the sentence is often attributive and it may be understood as “a fairly loose connection between the parts of the sentence, which are often coordinate and of equal syntactic status” (Deutschbein 1931). The shortness and compactness of English sentences is then the advantage against the lengthy subordinate clauses. Paratactic tendencies have another outcome as well. That is the frequent use of hendiadys as a figure of speech expressed by two coordinate elements, e. g. sanity and reason = sound reason. Deutschbein (1932) provides another subdivision of hendiadys into qualitative and quantitative. The former is described as a combination of two items of different meaning, e. g. sanity and reason, the latter is defined as two items having the same concepts, e. g. rule and regulation, far and wide, part and parcel. Sometimes two opposites are put together, e. g. heads and tails, ups and downs. If the cohesion is very tight, compound-like expressions come into existence, e. g. bread-and-butter, law-and- order.
Spitzbardt (1956) makes another distinction. It is that of hendiadys and the copulative repetition of one word or the pairing of synonymous words. In this case, hendiadys is required to have “a modifier-modifier relation, where two different, non-synonymous words are combined, one of the words modifying the other” (ibid.). As an instance there are adjectival phrases like fair and well, nice and early, good and ready. They are paratactic in construction, but hypotactic in relation. The explanation of such constructions is as follows. “Rhythmically and metrically and has the same value as the adverbial suffix -ly, and its use may chiefly be due to the common omission of this suffix in colloquial English and to a desire to avoid the consequent clash of two stresses, …” (ibid.). The explanation is more relevant to the use of binomials in everyday English or in poetry, rather than to legal English. Though, some may object that binomials are of alliteration, rhyme and meter basis origin (see Chap. 4. 2).
Gustafsson (1975: 15) puts the previously mentioned adjectival phrases into the category of intensification. Nevertheless, he gives an account of other pairs that fall under this heading. They are day after day, step by step, rained and rained, and they are defined as repetitions with a coordinate or prepositional link on a lexical basis. Other examples, stereotyped and thus irreversible, may be those based on semantic repetition like twist and turn, hate and despise, pull and tug. Some of these are typical of legal English (last will and testament).
Semantic Aspects
The semantic parallelism is prominent as well as the syntactic. In other words, the two parts of a binomial must be semantically related, “it cannot be a coordinate combination of any two words” (ibid.). The relation of A and B may be either A and B are the same, or B is the variation of A. However, the semantic relationships are more numerous than only the two previously suggested. Gustafsson (ibid: 16-18) comments on several classifications according to the linguists she refers to in her study. Malkiel (1959) distinguishes five categories. The overwhelming majority of binomials fall under the first three categories, the last two are rather limited.
A and B are near-synonyms
A and B are mutually complementary
B is the opposite of A
B is a subdivision of A and vice versa
B functions as the consequence, inevitable or possible, of A
Pairs in 1 (null and void, death and destruction) are said to “add colour and emphasis to a bare statement” (ibid.). Mutual complementation (2) can be illustrated on elbows and knees, food and drink, soul and spirit. These are non-synonymous pairs and denote a notion which is dualistic. The third category covers terms, the opposition of which can be expressed both syntactically (to be or not to be) and lexically (dead or alive, up and down). The two remaining categories have such representatives as genus and species, dollars and cents (4), to shoot and kill, the rise and fall (5).
Bendz (1967) categorizes the semantic relationship of word pairs into three groups:
1. antonymous, 2. enumerative, and 3. synonymous. An antonymous sequence can usually have no more than two members (life and death, heaven and hell). An enumerative may contain several members, according to the topic that people are discussing (men, women and children). Synonymous binomials seem to emphasize the mutual semantic ground of the paired words. If intensity is given to the discourse the term emphatic binomial is used as opposed to interpretative binomial. The second member of such a binomial gives more precision to the first member. Typically, interpretative binomials combine a native word together with a foreign one.
The last categorization is offered by Koskenniemi (1968). She classifies binomials into
1. nearly-synonymous, 2. associated by contiguity of meaning, 3. complementary or antonymous, and 4. enumerative. However, it is not necessary to comment on this division any further as it is similar to those discussed above.
Phonetic and Rhythmic Aspects
The linguistic device of binomials is quite productive and it is some phonetic factors that probably brought about its popularity and prolonged existence. It has already been mentioned that alliteration, rhyme and assonance increase the power of binomials and thus serve (d) as an effective mnemonic aid. The repetition of initial consonants or vowels is frequent, and even the extension of the repetition from the first consonant to the following vowel is not unique (cash and carry). The second phonetic device widely used is rhyme (blood and mud, highways and byways). Assonance is a less common device in binomials, though some instances can be found (hard and fast).
“When a binomial becomes popular in language and reaches a formulaic stage, the sequence of members tends to become fixed and the binomial is virtually irreversible” (Gustafsson 1975: 19). The order, though, is influenced by various factors. To exemplify one, there is the fact that some binomials are combinations of native and foreign words so the sequence has been retained for centuries (last will and testament, rules and regulations). Another reason is that the parts are accumulated in order of their length,
i. e. according to the syllabic grounds of their parts and following the principle of end- weight (see Chap. 2. 4. 2. 3). As a result, in many set phrases the order is short plus long (give and bequest, unable and unwilling, full and absolute), but it is not always the case. Very frequently, it is the other way round (devises and bequests, beneficiary or recipient, continued and assumed, recognized and agreed).
Finally, it may be concluded that there are different sources of binomials, though a notable proportion of pair words are borrowings of French varieties. Further, over half of the legal binomials are nouns, the second largest group is made by verb+verb pairs (roughly one third) and all binomials in legal English are irreversible, i. e. the order of the components is fixed. Phonetically, they are, as in Old English, often based on alliteration, assonance or rhyme.
Summary
The foregoing chapter has, firstly, focused on the definitions and origin of binomials. Secondly, the syntactic and semantic relations of binomials, together with the phonetic and rhythmic aspects, have been categorized and described as well. The aim of this chapter was to provide a basis for the practical part of this thesis, the objective of which is to explore the sample documents and find instances of the classifications of the relations that exist in the word pairs.
Practical part
The practical part of this thesis consists of two major parts. The first major part is a stylistic analysis of some samples of legal documents. The second major part includes two analyses with a specific focus on binomials. The first analysis focuses on the distribution of binomials in theme, transition and rheme according to the principles of communicative dynamism and functional sentence perspective. The other analysis deals with the semantic relations of binomial expressions. In all the researches I apply and follow the theories discussed in the theoretical part of this work.
Stylistic analysis
The Aim
The aim of a stylistic analysis is fivefold. The intention is to identify stylistic markers, to study how the stylistic devices used help to achieve the communicative aim of the text, and to identify the functional style the text is representative of. Two more points should not be omitted - to study how close the text is to the norm of the functional style, and to analyse, if present, the language features of the text which are not typical of the style and identify the reasons for using them. In the analysis I follow the structure outlined in Chapters 2. 2. 3 and 2. 4. 2 in the theoretical section.
General Characterization
In this thesis there are five sample texts under examination, three of which constitute a testament, an agreement and a warranty deed. They are complete texts. The two remaining, represented only in part, are amendments to the UK acts. All the documents have been adopted from the Internet. The relevant websites are referred to in the bibliography.
All the sample documents are written (printed) texts. Supposing they are representatives of the administrative style (sometimes called officialese), their main language function is referential, followed by those of metalinguistic and conative. Several stylistic markers are expected to be present. They are a high level of explicitness, clear logical organization avoiding ambiguity, terminology, formal language together with formulaic, syntactic complexity, and, among others, graphological means foregrounding the logical sequence of the text.
It is necessary to begin with some comments on the “situation” in which the texts function. Due to the character of the texts I am going to describe the texts in terms of the situational constraints according to the USE - province, status, modality and discourse (see Chap. 2. 3. 2) - because very little information can be perceived from the second constraint, that of the USER.
Province (domain) covers those features of a text that are relevant to the kind of occupational or professional activity that the text is concerned with. In other words, the text reflects the area or field under which the text is used. On these grounds, all the texts are awaited to belong to the domain of law. Status refers to the social relationship of the participants who are involved in the text. In all the texts it is assumed to be formal, non- personal, and polite. Modality comprises specific features that produce either spoken or written texts of different sub-varieties. This constraint includes numerous variations, so all the texts supposedly belong to the genre of codes of laws, and contracts. As far as the last constraint regards, discourse subsumes two types of variability of language labelled as medium (writing X speech) and participation (monologue X dialogue). In this sense, it is apparent that the texts are written monologues; the contracts may be considered a sub-variety of dialogue, because there are two parties involved in them.
For the sake of simplifying the references to the sample documents, I use the following abbreviations: Warranty Deed (WD) ; Independent Contractor Agreement (ICA) ; Last Will and Testament (T) ; Uniform Player's Contract (UPC) ; Police and Justice Act (PJA) ; and Terrorism Act (TA).
Analysis
Graphological and Phonological Level
From the graphological point, the texts have their own layouts, which show some features characteristic of the genres. The texts are regularly divided from the start to the end. The most apparent is paragraphing, i. e. the dissection of the texts into sections, subsections, paragraphs, and other units and subunits according to the character of information that is being mediated. To mark and underline the division, various means are applied, such as capitalization of the initial letters or whole words, phrases and headings; lettering; spacing; bracketing of additional or explanatory information; and highlighting the names of the documents and new sections by the use of bold (or other) font. Furthermore, the names of the participants are in bold because they are essential. In the case of the WD, the only item in bold is its name. Other highly important items like names (MARTY LUTHOR, ABC PARTNERS), the appendix (EXHIBIT A), the character of relationship (AS JOINT TENANTS) between the participants in legal terms, the subject matter of the instrument (WARRANT AND FOREVER DEFEND) are in capitals. The final important piece of information, that of the witness act, is capitalized, too (WITNESS my hand and official seal.).
Capitalization of initial letters is in the texts used widely, so I intend to add some more comments and concrete instances. Capital letters can be seen in the names of the participators (Client, Contractor; the Player, the Club; Grantor, Grantee), occupations (Chief Police Officer; Chancellor of the Exchequer, the League President), organizations and institutions (Players Association, Serious Organized Crime Agency, the Registrar General for England and Wales), instruments/documents (Agreement, Basic Agreement, Will, Asylum and Nationality Act), main sections (Schedule 4, Article VI, General Provisions), and also in the sums of money (Fifty Dollars, Two Hundred Thousand Dollars) when they are set in words because these institute an important matter. The capitalized items are directly related to the documents - they carry the notion of “this and no one else”; further, capitalization may seem to supply the definite article (though it is not always the case as in the UPC - the Player, the Club, the League President). On the other hand, some of the above categories are low-cased, such as in the Acts (section 7, subsection 1, paragraph a), the purpose being probably the fact that they are considered lower in the rank of section classification; and we can see will (T), agreement (ICA, UPC), or player (UPC). The explanation is obvious - the low-case items refer to other, general bodies and entities outside the instruments. Whatever the reason is for choosing capitalization or low-case lettering, the pattern is definitely followed throughout all the documents. In conclusion, it is noteworthy that in the testament there is only one word capitalized (EXCEPT 4, 3). The ground is that it, firstly, marks the beginning of a new clause which is preceded by a three-line postmodification of the object, and secondly (probably this is the main argument), it states the essential and contrastive condition to the whole previous information.
Two last features common to all the documents to be mentioned are the presence of lines on which the missing but relating data need to be filled in; and all the sums of money are first put in words, than in the corresponding figures.
On this the day of, 2000, before me, the undersigned … (WD)
…for the consideration of Two Hundred Thousand Dollars ($240. 000), hereby…. (T)
Any player violating this Rule shall be fined not less than Fifty Dollars ($50) nor more than Five Hundred Dollars ($500) (UPC, 309)
Punctuation is one of the foregrounding elements of legal English as well. Ordinary people complain that it is difficult to follow the ideas communicated by those who draft legal writs. In earlier times it was not unusual to have a whole document drafted in one long and extremely complex sentence without the use of a single comma. This was a means to avoid forgery of such a record because punctuation could have been easily added or deleted. Sometimes only one paragraph represented a whole sentence without a comma or similar punctuation mark, which is not unusual even today. It is perhaps the movements towards simplification of legal English that makes current instruments more abundant in punctuation (see Chap. 3. 4 above). In all the attached material punctuation is applied regularly, abundantly and more or less evenly throughout every text. In the ICA commas are employed in every line, the longest unpunctuated part extends over two lines. Commas are thus even more frequent than in the T. Here, commas appear in each or every other line; the longest sentences without a comma stretch (nearly) over three lines (see Article 4, p. 3; General Provisions, p. 3). The same characteristic applies for the UPC. A very special case is the WD. It consists of two main paragraphs and six other lines with the total of 39 commas, the great majority of which is in the first paragraph (24). The second paragraph includes ten. Evidently, the WD is heavily punctuated. The ground is the fact that the paragraphs consist of only three sentences which are composed of numerous phrases. These phrases represent the sentence elements and need to be strictly separated for good, clear and straightforward comprehensibility of the text.
Generally, commas, semi-colons and full stops appear where there is the necessity to emphasize the beginning or end of a phrase, clause or sentence, or new and highly important or contrastive information that has an essential effect. Commas and semi- colons are also used for the separation of individual items where needful, usually when an enumeration is done; commas and dashes are employed in cases where additional information is inserted.
On the level of phonological category, much cannot be said because it is more relevant to be discussed in spoken texts. Nonetheless, there are some features common in margin both to spoken and written media. They are assonance, alliteration and partially rhyme. This is grounded by the presence of binomials in legal English. I do not intend to comment further as more explanations are outlined in Chapters on binomials in this thesis.
Lexical Level
Lexical aspects, along with those of grammar, contribute to the distinct character of legal texts and documents. Generally speaking, the vocabulary is formal and standard (utilized, acquainted with, constitute in ICA; unsupervised administration, deem in T; commencement, cease, substantial in UPC) complying with the norms of the style to the highest degree. It is supported by the presence of literary language; no colloquial expressions appear. Moreover, there are other essential lexical aspects pinpointing the typical picture of legal English. Firstly, it is the traditional use of archaic expressions in which law language is abundant. In all the samples there are a few occurrences of items such as hereafter and heretofore (UPC) ; herein, hereto and hereby (WD) ; thereof (T) ; hereinafter, thereto and whatsoever (ICA). The occurrences, though, are not high as they may be in some other writs. It depends on the drafter of the document. Overtly, these archaisms are used for the kind of precise reference to the document or its parts, and to the contracting parties. Sometimes, these expressions are the grounds for critic because some people see these items as a ritually repeating habit, not reverence to tradition. The least occurrences (zero) in my material are in the Acts. The reason is that they are intended for the public and ordinary people, so these archaisms are replaced by relevant phrases or simply let out so that the text is fully comprehensible.
The second distinct aspect is the use of technical words, or the terms of art. Every domain has its characteristic vocabulary connected to the area in which it plays part. The origin of the lexis is multilayered due to many historical events. There are, besides binomials, other borrowed words from French and Latin as well as other Romance and Germanic languages that have established as technical terms. In the sample material it is possible to find devise, bequest and bequeath for give, pecuniary devises meaning money; pre-decease for to die, encumbrances for obligations (T) ; assignor and assignee, investigation or hearing held or conducted, liability, to breach, duly authorised (UPC) ; executed the instrument meaning signed, notary public, deed, consideration for sum (WD) ; disbursements for expenses (ICA) ; and performance of powers, continuance in force, statutory instrument, criminal conduct, prohibited articles (Acts). Furthermore, legal English is also specific in the use of collocations, bi-, tri- or multinomial pairs, and phrases constituted by more then two items. They are also considered very formal and are labelled technical terms. The instances in the material are as follows: continued or saved by virtue of; in the course of and in connection with; released without charge and on bail; to confer and impose additional powers and duties; power to remove truants to designated premises (Acts) ; be at the applicable rate set forth; upon any termination of; under contract and prior to expiration (UPC) ; revoke and repeal all prior wills and codicils; residence and domicile; grant the authority to; bequeathed, transferred and gifted; beneficiary or recipient (T) ; continue in full force; waiver and relinquishment; impaired or invalidated (ICA). The last one to enumerate is found in the WD - attached hereto and incorporated herein by reference. The number of such terms in the material is endless and it is not necessary to list them further.
Thirdly, it is not unusual to find vocabulary that originates in other domains, such economy, finance, science, trade, medicine and others. One of the conditioning aspects of such presence is what a certain document is supposed to mediate and what genre it belongs to, sometimes a term has been assimilated and is used as a legal item. In the material I have found e. g. pecuniary (finance), maintain and liquidate investments, preferred or common stocks (economy).
Enumeration (listing more than two elements of the same meaning or similar character) is richly displayed in legal documents. Again, this is applied for the sake of precision and avoidance of loopholes, sometimes for the sake of reverence to tradition. Again, some instances in the texts: claims, costs, losses, fees, interests, or damages; all files, records, documents, drawings, specifications, equipment, and similar items; invalid, void and unenforceable (ICA) ; debts, expenses, taxes, administration costs and individual devises and bequests (T).
Remarkable is also the incidence of abstract nouns, such as authority, power, rights, duties, provision, benefits, conditions, regulations, procedure, resolution, compensation, expiration, termination, etc. The all appear in my documents. In this sense, it is also possible to “classify” the category of verbs. They are usually chosen from a rather restricted range, e. g. accept, administer, require, designate, grant, agree, recognise, present, constitute, perform, prevent, comply with, observe, exercise, enter, remain, direct, control, impair, request, conduct, receive, obtain, limit, accrue, invalidate, etc. Due to this restriction, sometimes paraphrases of the same notion appear in the same document. For instance, the phrase confer power on sb appears in the texts as authorise sb, accredit sb, or grant sb the authority to, grant accreditation, or even to nominate (though depending on the context) ; have effect, be in/at effect and be in force mean completely the same; come into effect and come into force employ the same idea as well.
Legal English is nearly void of any adjectives. If there are any adjectival items present, then the grounds are evident. Such adjectives essentially relate to the “topic” of the document which it deals with or they constitute an element of a fixed phrase or collocation, some of which make technical terms. In the sample material there are adjectives such statutory, discretionary, general and elective (they collocate with powers and rights) ; informal and unsupervised (administration) ; real and personal (property), specific (devises, bequests, articles) - all in the T; (un) enforceable, (in) valid, void (provisions, articles, agreement), necessary (disbursement, costs, fees), liable and responsible (person, party, body entity) - in the ICA; additional (powers, duties), and minor, consequential, incidental, supplementary (provisions, amendments) in the Acts. The most frequent adjective in all the texts (except for the WD) is that of reasonable. It is in collocation with nouns such as grounds (Acts), fees, costs (ICA), compensation (T), promotional activities, requirements (UPC). They are fixed items and all seem to be used technically in these instruments. Other adjectives are not present, particularly those that have some evaluative character, because their meaning is very often ambiguous and imprecise, and it would seem improper to use them. Legal texts must be punctual and allow for no loopholes, variability of meaning, or misinterpretation. Nevertheless, in my material there is one document which is not strictly void of evaluative adjectives. It is the UPC. There are several instances of good as follows. The Player agrees to …. and to keep himself in first-class physical condition and to conform to high standards of personal conduct, fair play and good sportsmanship. (UPC 292, 3a)
…if the Player shall fail….. to conform his personal conduct to the standards of good citizenship and good sportsmanship… (UPC 298, 7, 1)
In these occurrences good has an evaluative character; however in the collocations in which they appear and in this particular context it cannot be else. Logically, it would be weird to leave good out, or to change good for some other adjectives, because it would otherwise make no sense. The items good citizenship and good sportsmanship are more or less fixed collocations, a kind of technical terms I dare say. Illogical would seem bad sportsmanship - the structure and contents of the clause would have to be set differently. The subject matter of the UPC document, which is the area of sports, further conditions the use of other evaluative adjectives as in the following instance. It is an extreme occurrence of such a large number of adjectives in one sentence.
The player represents and agrees that he has exceptional and unique skill and ability as a baseball player; that his services to be rendered hereunder are of special, unusual and extraordinary character which gives them peculiar value which cannot be…. And that the Player's breach of this contract will cause the Club great and irreparable injury and damage. (UPC 293 4a)
It is evident that they are used to convey the quality of the services the player wants to “sell” and the club intends to “buy”. The quality, in terms of the subject matter of this contract, cannot be else. Noticeable is also the meaning of all the adjectives - except for great and irreparable, but including the first-class in (4) - they denote the highest possible notion of good.
In conclusion to the lexical level analysis, I would like to mention that in some studies on legal language it is possible to learn that legal texts are empty of comparatives and superlatives. In my material, though there is one example as in
I direct my Executor to seek reimbursement for such taxes … subject to any such tax to the fullest extent permitted by law.
The ground is obvious - it is intended to mean the maximum of what is allowed by law and no other possibility.
(More comments on the use of adjectives in legal English are available below in Chapter 2. 2, Subchapter 2. 2. 5 on Binomials.)
Grammatical Level
The grammatical features of English legal sentences are as distinctive as those of lexis. Most striking is the complexity of sentences which is evident at first sight. Such an enormous complexity is the result of heavy modification, embedded clauses, unusual word order and inserting words or phrases in places where they, in common speech, do not appear. As a result, the great majority of sentences are long compound or complex sentences with a minimum of simple sentences (clauses). These simple sentences, along with short complex ones, are usually at the beginning (in the opening paragraphs) or at the end of the text. To support this, here are some examples.
I revoke all my prior wills and codicils. (T Article 1) On this ay of , 2000, in the County of Texarcana, State of Texas,
I/we herewith sign this warranty Deed. (WD)
WITNESS my hand and official seal. (WD)
Nothing in this section authorises a constable to enter a dwelling. (PJA Part 2, 24B, 9)
This Act extends only to Northern Ireland. (TA Part 7, provision 5, 4)
Referring to modification, it is post-modification that supersedes the other category, that of pre-modification. The former is carried out by numerous phrases, namely prepositional and adverbial, finite and non-finite clauses, and of-constructions. Their order (of the phrases) is done with respect to what is being modified and what the importance of the modified and modifying element is. Therefore, sometimes there are phrases inserted into phrases where they do not belong, and very clumsy and non- elegant sequences come into existence (18, 19). Even the predicate may become separated (20). As far as word order concerns, it is not unusual that a sentence begins with an adverbial (15, 20).
I give my entire interest in the real property which was my residence at the time of my death, together with any insurance on such real property, but subject to any encumbrances on said real property, to my spouse, John T. Webster. (T Article 2)
I direct my Executor to seek reimbursement for such taxes paid by my Executor from the recipients of property subject to any such tax to the fullest extent permitted by law. (T gp 3)
At his or her request and in his or her presence and in the presence of each other, we herewith subscribe our names as witnesses hereto. (T last par.)
Any similarity of the provisions of my Will to the provisions of the will of my spouse or any other person, if any, executed on the same or on different dates than my Will, shall not be construed of as evidence of such a contract. (T gp 6)
…until such time as the project for which Contractor was hired per this Agreement has been completed. (ICA 1. 01)
For violation by the Player of any regulation or other provision of this contract... (UPC306, 5)
Contractor is responsible for paying when due all income taxes, incurred as result of the compensation paid by Client to Contractor for services under this Agreement. (ICA 2. 04)
During the term of this agreement, Contractor shall not, directly or indirectly, either as a Contractor, Client, consultant, agent, principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity, engage or participate in any business …. (ICA 5. 04)
To illustrate a distinct word order in legal English, here is a part of the closing paragraph of the WD.
On this the day of , 2000, before me, the undersigned, a notary
public in and for said County and State, personally appeared Mark Lipton, and Joseph Waner, ……, and acknowledged to me that he/she/they executed the same in ……., and that by his/her/signature (s) on the instrument the person (s), or entity upon behalf of which the person (s) acted, executed the instrument.
In the Testament (Article 4, 3) there is such a long post-modification of an object by to- clauses, that the whole sentence stretches over eight lines. In the UPC (300 9a) there is also another long post-modification worth noticing. For the reason that they are too long I do not intend to put them down here. Therefore, see the Appendices.
Another typical grammatical feature of legal English is the use of modal auxiliaries will and shall as those appearing most frequently. In everyday speech, will is used in majority, shall only on special occasions, and they both refer to future. In legal documents, there is a difference in the use. Both auxiliaries are applied to refer to future, but shall denotes obligation, so it is invariably used to express an obligatory consequence of a legal decision. There are numerous instances in my material. The following are some examples.
No Trustee shall be liable to any person interested in the Trust for any act or default … (T 6, 4)
However, estate taxes attributable to any gift…. shall be paid from the residuary of the Estate. (T gp 3)
The Secretary of State shall not make an order containing (with or without any provision) any provision authorised by subsection (1) unless …. (PJA Part 1, section 7, 2, 4)
However, some of the material contains both will and shall with reference to future and obligation. The difference seems to be so slight that it is hard to explain. Perhaps shall, in these occurrences, expresses more weight and emphasis as in the following.
Contractor agrees that Contractor is not and will not become an employee, partner, agent, or principal of Client while this Agreement is in effect. (ICA 2. 03)
All files, records, documents, drawings, specifications, equipment, and similar items relating to the business of Client, whether ….., are and shall remain the exclusive property of Client and shall not be removed from the premises of client under any circumstances whatsoever without the prior consent of client. (ICA 5. 03, 2)
Another contrastive example is in the UPC (290, 2) :
The subsequent sentence says:
Payment shall be made on the day the amount becomes due, regardless of whether the Club is “home” or “abroad”.
In sentence 25) the reason for using will seems to be the last part beginning with except as, because it leaves some space for the modification of the schedule. In 26) it is stated precisely, that the payment must be done on the date that the player and the club agreed on either in the contract, or in a special covenant.
Sometimes it is possible to find other auxiliaries, such as may, must and even would. May is employed to express permission (25) and possibility (26) both at present and in the future.
The Secretary of State may by order provide for provisions of Part 1 of Schedule 4 to apply to every person who under section 38 is designated as a community support officer. (PJA Part 1, 7, 1)
I direct that all my debts and obligations, including ….. be paid as soon after my death as practical; except that any mortgage indebtedness or other long term contractual indebtedness …., which may exist as a part of my Estate, may be continued and assumed by …
Would and must are used, though, only under special circumstances and context, or even for grammatical purposes, such as the conditional in the samples below. The information being mediated conditions the use. Thus must and would seem to be rather rare.
An accreditation under this section, unless it is previously withdrawn or ceases to have effect in accordance with subsection (8), shall remain in force for such period as may be specified in the accreditation, but it may be renewed at any time with effect from the time when it would otherwise expire. (PJA Part 2, 15, 8)
The Player represents that he has no physical or mental defects known to him and unknown to the appropriate representatives of the Club which would prevent or impair performance of his services. (UPC 294, 4b) S A fairly frequent grammatical feature that is characteristic of legal documents is that of the so-called whiz-deletion. It means the omission of the wh-forms plus some forms of the verb to be where this is not apparently needed. It is exemplified as follows.
The Club and..... may make public.... record of any inquiry, investigation or hearing held or conducted, including in such record all evidence or information given, received, or obtained in connection therewith. (UPC 301, 9)
An article is prohibited for the purposes of this section if it is an article -
made or adapted for use in the course of or in connection with criminal conduct, or (b) intended by the person having it with him for such use by him or by some other person (PJA Part 2, 8, 5)
The last grammatical feature to be mentioned is the use of any, which sometimes appears excessive, but it has its justification. It is applied to make the whole sentences as inclusive as possible, so that, again, there is no loophole. The sentence with the largest number of any is in the ICA.
... nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other times. (6. 03)
All the material also contains grammatical markers which underlay its level of formality. Firstly, the documents are written in 3rd person, e. g. Player, Organization, Club, President, Assignee (UPC) ; Grantor, Grantee (WD) ; Client, Agreement (ICA) ; Executor, Will, Estate (T), etc. In some parts appear relevant pronouns such as its, her, his, they. There is also an instance of the emphatic (existential) there. These items denote impersonality. Secondly, there are no 1st and 2nd person pronouns. The only exception is the testament. Due to its character, it is natural that 1st person pronouns appear, such as I and my, but the level of formality is balanced by the use the passive voice, formal vocabulary and technical terms - in these aspect, it is the richest, together with the WD. Thirdly, it is the frequent application of the passive voice, which is more or less noticeable in every document. The largest number of occurrences, as said before, is in the T, the smallest number accounts for the UPC, probably due to the fact that the UPC is written in the present tense, it is abundant in the use of conditional and it is full of procedure, so the use of the active voice seems to be preferred by the drafter. The ratio of use of the passive in the other documents is reasonable, depending on what information is being conveyed. The following are some examples.
If there exists no such surviving beneficiary or contingent beneficiaries as named above at the time of my death, … (T 3, 3)
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