Università degli Studi di Modena e Reggio Emilia D
IPARTIMENTO DI STUDI LINGUISTICI E CULTURALIC ORSO DI L AUREA M AGISTRALE IN
LANGUAGES FOR COMMUNICATION IN INTERNATIONAL ENTERPRISES AND
ORGANIZATIONS
Popularizing surrogacy law through YouTube: a corpus-based discourse analysis
Prova finale di:
Sara Sproccati Relatore:
Silvia Cacchiani
Correlatore
Donatella Malavasi
Anno Accademico 2018 / 2019
RIASSUNTO
Il presente lavoro è incentrato sulla divulgazione del discorso giuridico attraverso YouTube. In particolare, i video analizzati trattano il tema della legge sulla maternità surrogata e sono finalizzati a fornire consigli di carattere legale a coloro interessati a questa procedura. Il primo capitolo presenta un quadro generale sul concetto di discorso legale, partendo dal presupposto che il discorso è una pratica sociale. Ciò significa che l’attenzione è focalizzata non solo sulle caratteristiche linguistiche del cosiddetto Legalese, ma anche sul contesto istituzionale e sul contesto di comunicazione, il quale comprende anche l’aspetto culturale, sociale e storico. Il secondo capitolo concerne la divulgazione del discorso legale, ossia un processo che riguarda sia l’aspetto linguistico che il contesto di comunicazione. In seguito, sarà presentato il corpus utilizzato per l’analisi seguito dalla domanda di ricerca che corrisponde agli obiettivi di questa tesi. L’obiettivo principale è quello di capire come il discorso legale si possa adattare a un nuovo contesto di comunicazione, caratterizzato da un pubblico di non esperti e dall’utilizzo di video YouTube. A tal fine, verranno impiegate le strategie di divulgazione sviluppate da Calsamiglia e Van Dijk (2004) e la nozione di metadiscorso di Hyland (2005). Inoltre, dato che verranno analizzati dei video YouTube, è necessario esaminare anche l’aspetto visivo.
Conseguentemente, verranno prese in considerazione anche le teorie di Barthes (1977), Halliday (2004) e Martinec e Salway (2005) riguardanti la relazione tra immagine e testo, oltre alle strutture visive proposte da Kress e Van Leeuwen (2006). Difatti, è importante tenere presente che anche gli elementi visivi possono creare significati; perciò, saranno illustrati i processi e le strutture visive di interesse per l’analisi poiché rappresentano gli strumenti attraverso cui vengono codificati i significati. L’ultimo capitolo corrisponde all’analisi, sia quantitativa che qualitativa, la quale include i vari argomenti trattati nei capitoli precedenti. Di conseguenza, in un primo tempo, verrà proposta una descrizione generale del tema trattato, soprattutto da un punto di vista giuridico, in modo da poter illustrare il contesto generale.
Successivamente, le caratteristiche del discorso giuridico e le teorie presentate verranno utilizzate per esaminare come il discorso giuridico si adatta a un nuovo contesto di comunicazione. Sulla base di ciò, si potrà notare come la complessità del linguaggio giuridico sia sostituita da un linguaggio più semplice e trasparente, grazie al supporto delle strategie di divulgazione. Inoltre, gli strumenti metadiscorsivi e i significati interattivi presenti nei video dimostrano che l’obiettivo principale è quello di adattare i contenuti ad un pubblico di non esperti. Di conseguenza, i video analizzati, piuttosto che diffondere le leggi in modo
impersonale, tentano di instaurare una relazione tra i soggetti parlanti e gli spettatori in modo da poter rendere accessibile a tutti la legge sulla maternità surrogata.
ABSTRACT
The present work is focused on the popularization of legal discourse through YouTube. In particular, the clips analysed concern surrogacy law and they are aimed at giving legal advice to people who are interested in surrogacy. The first chapter gives an overview of the notion of legal discourse, starting from the assumption that discourse is a social practice. This means that the focus is not only on the linguistic features of the so-called Legalese, but also on the institutional setting and on the context of communication which includes also the cultural, social and historical background. The second chapter concerns the popularization of legal discourse which is a process involving both the linguistic aspect and the context of communication.
Afterwards, the chapter describes the corpus and it illustrates the research question which corresponds to the main purpose of this work. In particular, the aim is to understand how legal discourse is adapted to a new context of communication which is characterised by a non- specialist audience and by the use of videoclips on the YouTube platform. In order to do this, the popularising strategies elaborated by Calsamiglia and Van Dijk (2004) and Hyland’s (2015) notion of metadiscourse will be employed. Furthermore, since the focus is on YouTube videos, it is also necessary to analyse the visual aspect. As a consequence, the theories by Barthes (1977), Halliday (2004) and Martinec and Salway (2005) on image-text relations will be considered, in addition to the visual structures proposed by Kress and Van Leeuwen (2006).
Indeed, it is important to consider that also visuals can create meanings; hence, the visual processes and structures of interest will be presented since they are the means through which meanings are encoded. The last chapter corresponds to the analysis, both qualitative and quantitative, which includes the topics covered in the precedent chapters. Therefore, the first step is to give an overview on the subject, in particular from a legal perspective, in order to illustrate the general context. After that, the features of legal discourse and all the theories illustrated will be employed in order to investigate how legal discourse is adapted to a new context of communication. Hence, the complexity of legal English will be substituted by a simpler and more transparent language, with the support of popularising strategies.
Furthermore, metadiscursive devices and interactive meanings encoded in the videos demonstrate the interactional character of the videoclips, which is aimed at accommodating the lay audience. As a consequence, rather than inform people on surrogacy law, the videos analysed try to create a relationship between speakers and viewers in order to make surrogacy law accessible to lay people.
RÉSUMÉ
Le présent mémoire traite de la vulgarisation du discours juridique à travers YouTube. En particulier, les vidéos analysées concernent la thématique de la loi sur la maternité de substitution et elles visent à donner des conseils de type juridique à ceux qui sont intéressés à cette procédure. Partant du présupposé que le discours est une pratique sociale, le premier chapitre présente un cadre général du concept de discours juridique. Cela signifie qu’on ne se focalisera pas seulement sur les caractéristiques linguistiques de ce qu’on appelle, en anglais,
« Legalese » e, mais aussi sur le contexte institutionnel et sur le contexte de communication, qui comprend aussi l’aspect culturel, social et historique. Le deuxième chapitre porte sur la vulgarisation du discours juridique, soit un processus qui concerne et l’aspect linguistique et le contexte de communication. Ensuite, le corpus utilisé pour l’analyse sera présenté avec la question de recherche, qui correspond aux objectives de ce mémoire. Le but principal est celui de comprendre comment le discours juridique puisse s’adapter à un nouveau contexte de communication caractérisé par un public de non-experts et par l’utilisation de vidéos YouTube.
Pour ce faire, on appliquera les stratégies de vulgarisation développées par Calsamiglia et Van Dijk (2004) et la notion de métadiscours de Hyland (2005). En outre, étant donné qu’on va analyser des vidéos YouTube, il est aussi nécessaire d’examiner l’aspect visuel. Par conséquent, on prendra en considération les théories de Barthes (1977), Halliday (2004) et Martinec et Salway (2005) concernant la relation entre image et texte, outre aux structures visuelles proposées par Kress et Van Leeuwen (2006). En effet, il faut rappeler que les éléments visuels peuvent eux-aussi transmettre des signifiés ; donc, on présentera les processus et les structures visuels d’intérêt pour l’analyse, car ils représentent les instruments par lesquels les signifiés sont codifiés. Le dernier chapitre correspond à l’analyse, et quantitative et qualitative, qui inclue les notions traitées dans les chapitres précédents. Conséquemment, dans un premier temps, la thématique traitée sera illustrée de façon générale, surtout d’un point de vue juridique, dans le but de donner un cadre général du contexte. Successivement, les caractéristiques du discours juridique et les théories présentées seront utilisées pour examiner comment le discours juridique s’adapte à un nouveau contexte de communication. Sur la base de cela, on pourra noter que, grâce au support des stratégies de vulgarisation, la complexité du langage juridique est remplacée par une langue plus simple et transparente. Outre à cela, les instruments métadiscursifs et les signifiés interactifs présents dans les vidéos démontrent que l’objectif principal est celui d’adapter les contenus à un public de non-initiés. Par conséquent, les vidéos
analysées, au lieu de diffuser les lois de façon impersonnelle, visent à instaurer une relation entre les énonciateurs et le public dans le but de rendre la loi sur la maternité de substitution accessible à tous.
TABLE OF CONTENTS
INTRODUCTION ……….1
1. Motivations and objectives……….1
2. Structure………...……...2
CHAPTER 1 - Legal discourse………5
1. Introduction……….5
2. The notion of discourse………7
3. Legal discourse: historical and cultural background……….10
3.1 Legal discourse: institutionalisation, intradiscourse and interdiscourse……….….12
3.1.1 Institutionalisation of legal discourse………...14
3.1.2 Legal intradiscourse……….15
3.1.3 Legal interdiscourse……….16
3.2 Legal English……….……….17
3.2.1 Performatives in legal discourse………...19
3.2.2 Modal verbs and modality in legal discourse………21
3.2.3 Legal citations……….23
3.3 Classification of legal genres……….25
4. Concluding remarks………...…...27
CHAPTER 2 - Framework of analysis and methodology……….29
1. Introduction………...29
2. Popularization discourse………...30
2.1 Popularization as reformulation and recontextualization………...32
3. Popularizing legal discourse……….35
3.1 The popularization of legal discourse as expert-lay communication……….36
3.1.1 Building common ground and trust in the popularization of legal discourse…………38
3.2 Popularizing specialised discourse in the digital era………39
3.2.1 YouTube: an overview……….40
4. Research questions and corpus design………...41
5. Framework of analysis and methods……….44
5.1 Popularizing strategies, metadiscourse, lexical verbs associated to self-mentions and engagement markers……….……….45
5.2 Visual analysis framework……….48
5.2.1 Relevant theories of the relation between text and image: Barthes (1977) and
Halliday (2004) ...……….………....50
5.2.2 Narrative and conceptual representations………51
5.2.3 Representation and interaction……….54
5.2.4 Visual composition.……….57
6. Concluding remarks………...58
CHAPTER 3 - Analysis of YouTube videos on surrogacy law………...61
1. Introduction………...61
2. Surrogacy law in the United States, the United Kingdom and Australia…….…….………62
2.1 Institutionalisation and interdiscourse in YouTube videos on surrogacy law…………64
2.2 Analysis of the communicative event……….67
2.3 Legal-lay communication through the Web channel….……….70
3. Popularizing strategies………...71
3.1 Metadiscourse……….75
3.2 Lexical verbs associated to self-mentions and engagement markers.……….79
3.3 Popularizing legal discourse in YouTube videos………83
4. Visual analysis: image-text relations……….85
4.1 Narrative processes and conceptual representations………...88
4.2 Interactive meanings: gaze, size of frame, perspective………90
4.3 Visual composition in the videos under scrutiny………93
5. Concluding remarks...………94
CONCLUSION……….97
References…...………101
Appendix……….104
1
INTRODUCTION
1. Motivations and objectives
The present work examines the popularization of legal discourse in YouTube videos on surrogacy law. Hence, what is at issue is the analysis of a specific kind of expert-lay communication. This means that the addressers are people who have a specialised knowledge of surrogacy law, whereas receivers are lay people who may not have a sufficient background knowledge for understanding the technical contents provided by the speakers. As a consequence, legal experts are required to modify and adapt their language and contents to the lay audience and to a new context of communication. This popularising process involves a variety of aspects which have to be taken into account in order to make the legal-lay communication successful. Indeed, a transparent and clear language is essential, but it is also important to create common ground and to build trust with the audience; lay people should feel that the people speaking have expertise on legal matters and that they can rely on them for receiving further information. If speakers succeed in involving the viewers in the construction of knowledge, they will receive the necessary attention for transferring to them custom-made contents. This process of adaptation for accommodating the lay audience is of particular importance in the legal field since the language of the law is particularly obscure and difficult to understand. Furthermore, the communicative context of the videos under scrutiny foresees the predominance of lay people since communication takes place in non-legal settings; besides, the web channel enables a global reach and encourages interaction between speakers and viewers.
As regards the contents of the videos analysed, we can say that surrogacy law is one of the newly emerging aspects of family law and it varies significantly across different countries.
Indeed, in some countries, surrogacy is not legal while in others only some typologies are permitted. Therefore, this topic is one which creates a lot of debate because, on the one hand, it is considered as an incredible opportunity for people willing to have a child whereas, on the other, it is considered unethical and exploitative for surrogates. As a consequence, it is exactly
2 in these complex circumstances that legal advice is needed, but we all know how it is expensive.
As a consequence, popularizing legal discourse represents a good way for sharing specialised knowledge on surrogacy law, even though this cannot substitute the traditional legal counsel.
In light of this, the popularization of surrogacy law resulted to be an interesting object of study.
Indeed, the different ideologies and attitudes towards surrogacy may represent a crucial aspect determining the way people talk about it. This is evident in the videos analysed since they were produced in different countries, namely California, United Kingdom and Australia. Therefore, the choice of the object of the present work derived from an interest in the popularization of legal discourse, on which only few studies have been carried out, and on the will to draw attention to the ideological context of production. As a consequence, legal discourse is analysed in its entirety, thus involving not only the linguistic aspect, but also the socio-historical and ideological context, in addition to the specific situation of communication which includes various components, such as participants, purposes, channel, etc.
However, starting from this will to give value to popularization and to a subject matter which is particularly debated, the main objective of the present work is to investigate how legal discourse is adapted to a new communicative context in which lay people are predominant. In particular, we want to examine the strategies employed by experts for rendering their language transparent and accessible to the lay audience. Moreover, the analysis takes into consideration how addressers interact with the viewers in order to guide them through the topic treated.
However, interaction is also realized by body language and by visual representations. This means that the visual aspect is important too. Indeed, each shot of the videos proposed will be examined from a visual perspective in order to decode meanings conveyed by moving images.
In the whole, the present work is aimed at describing the legal discourse and the kind of legal- lay communication employed in non-institutional settings, in which the new media contribute to reach a global audience and to make specialised knowledge accessible to everyone.
2. Structure
The present work is subdivided in three main chapters. The first represents a very general introduction of the topic in question; indeed, it gives an overview of the notion of discourse and then it illustrates legal discourse from different perspectives. In particular, starting from the assumption that discourse is a social practice, the chapter draws attention to the socio-historical and ideological context which can both determine language. In order to do that, we propose the
3 three discursive formations elaborated by Goodrich’s (1987) which are institutionalisation, interdiscourse and intradiscourse. After the illustration of the institutional context and the relation of legal discourse with other discourses, the linguistic features of legal English are presented to evidence its complexity and obscurity.
The second chapter starts from the awareness of this opacity to introduce the necessity of popularising legal discourse in expert-lay communication, which is described in detail for clarifying the model of communication under scrutiny. Firstly, the notion of popularization discourse is presented in order to highlight that this process is carried out at various levels.
Indeed, popularization should be interpreted as both reformulation and recontextualization.
This means that other than linguistic popularizing strategies (definitions, descriptions, explications, etc.), experts should enact some processes aimed at accommodating the lay audience. In particular, considering the background knowledge of the audience, specialists should be able to simplify their language, but also to involve viewers in the construction of knowledge by presenting themselves as reliable and helpful experts. In this context, the analysis of metadiscourse is particularly useful for examining how the speakers guide the viewers through the topic and how they interact with the lay audience. All these notions and the theories used for the analysis of chapter 3 are illustrated in the second chapter, together with the presentation of the research questions and the corpus under scrutiny. The latter includes eight YouTube videos which are about various aspects of surrogacy law in different countries. Except for the first two, which are a combination of text, images and music, all the others feature a person speaking to the audience. Given the multimodal character of the resources analysed, the theories illustrated in this chapter also include some useful classifications for the visual analysis.
In particular, they comprehend theories on image-text relations, visual processes encoded in images, visual compositions and structures which may convey meanings.
The last chapter constitutes the analysis of the YouTube videos. The first step is to provide information on the theme of surrogacy and on the different legal approaches in the countries of interest, namely California, United Kingdom and Australia. After that, institutionalisation and interdiscourse are analysed, in addition to the communicative event of each video, paying particular attention to the opportunities given by the web channel. Therefore, the first objective is to illustrate the context of production and reception. The second step concerns the analysis of the linguistic aspect. As a consequence, the use of popularizing strategies and metadiscursive devices is examined in order to see how experts popularize surrogacy law. Moreover, the analysis of lexical verbs associated to engagement markers and self-mentions help us to understand the positions and roles of participants. After that, the characteristics of legal English
4 will be taken into account to understand whether they are present in the video transcriptions, thus showing how legal discourse changes in a new context. The last step is the visual analysis.
Hence, starting from the investigation of image-text relations which are of interest especially in the first two videos, each shot will be analysed in order to identify the narrative processes and visual representations employed to convey meanings. In addition to that, participants’ gaze, size of frame and perspective will be examined following the classifications proposed in chapter 2.
The last step concerns the study of visual compositions, which involve the way visual elements are positioned in the page and how they can grasp the viewer’s attention.
To sum up, the analysis carried out involves multiple aspects since discourse cannot be analysed exclusively at textual level but it has to be considered in its entirety, thus including all the elements which can contribute to the construction of meaning. Indeed, it could be the case that visual analysis testifies a certain degree of involvement between speakers and viewers, while the linguistic analysis may convey an idea of detachment and formality. Therefore, it is necessary to conduct a quantitative and qualitative study which helps us to understand how legal-lay communication is carried out in YouTube videos.
5
CHAPTER 1
Legal Discourse
1. Introduction
Legal discourse is a very broad concept that involves a great variety of aspects, including not only textual features but also characteristics outside the text itself such as the situation of communication, social conventions and the cultural background. As a consequence, this chapter is aimed at examining in more detail the notion of legal discourse. First of all, section 2 introduces the concept of discourse as the starting point of the present analysis. The notions illustrated have been drawn from two works by Fairclough, which are Language and Power (2015) and Critical Discourse Analysis that can be retrieved in “The Routledge Handbook of Discourse” (2012). The main focus is the interrelationship between language and social life and so the concept that texts cannot be analysed in isolation from the social context in which they are produced. In particular, the analysis in chapter 3 will take into consideration this aspect since the social attitude towards surrogacy law may influence the way people talk about it.
Afterwards, section 3 analyses discourse within the legal domain. In the first place, the historical and cultural background is examined in order to present the context in which legal matters take place. The focus is mainly on Common law, which is defined in comparison with Civil law and it is the legal system that will be considered in our analysis. After that, the notion of legal discourse is developed taking into account Goodrich’s (1987) discursive formations, namely institutionalisation, intradiscourse and interdiscourse. These three notions are of paramount importance since they allow to analyse legal discourse in its entirety. Indeed, intradiscourse relates specifically to the linguistic features, interdiscourse makes reference to the relation with other discourses, while institutionalisation focuses on the institutional context in which legal discourse is used. These concepts (sections 3.1) are the ones elaborated by Goodrich in Legal Discourse (1987) and they have been summarized in the present chapter because they represent the very general framework of the final analysis. Section 3.2 mentions some considerations given by Alcaraz and Hughes in Legal Translation Explained (2002). In
6 particular, it gives a detailed description of legal English in order to understand the kind of language in question, in isolation from the context of communication. Afterwards, section 3.2.1 is based on Fiorito’s On Performatives in Legal Discourse (2018) and it is centred on performatives which are examined in the context of the speech act theory elaborated by Austin (1956). As a consequence, it is demonstrated that, by means of language, it is possible to do legal acts, thus changing the state of affairs of the real world. Another aspect which is dealt with in this chapter is the notion of modality and modal verbs which are frequently used in legal discourse. The main works from which the considerations proposed are drawn are Modals and Modality in Legal Discourse: a corpus-based sociosemiotic Interpretation (Cheng, L. and Wang, X., 2017) and Semantics of the shall in Legal Discourse (Krapivkina, 2017). First of all, some definitions of modality are proposed; then, the presence of modals as modality markers is analysed, paying particular attention to the verb shall. Indeed, it has been proved that this verb causes problems of interpretation since it may assume several meanings. As a consequence, the debate on whether it should be replaced by other forms is still open. The presence of performatives and modals will be verified in the analysis of chapter 3. Besides, the topic of legal citations is proposed since they play a pivotal role in legal discourse. In particular, they are used for giving more information on specific subjects, for explaining technical terms but also for signalling textual authority. Therefore, intertextual devices represent a tool for conveying precision, certainty and authority. As regards the structure of legal citations, they follow a specific framework according to the country in which they are used. This section, which is based on Udina’s Citation as intertextual device in legal discourse (2018), has been introduced since the final analysis will take into account even the presence of intertextual devices in the videos examined. In the end, paragraph 3.2 deals with legal genres and their classification. The notions proposed follow Berūkštienė’s Legal Discourse Reconsidered:
Genres of Legal Texts (2016). First of all, some definitions of genre are proposed; secondly, legal texts are analysed focusing on their definition, their communicative functions and their structure. Then, the paragraph terminates with some typologies of classification of legal texts into genres, proposed by various scholars. Actually, it exists a great number of methods for the classification of legal genres, but there is not a unique approach which is universally recognized.
This demonstrates the heterogeneous nature of legal discourse and the complexity to organize it in a comprehensive and efficient system. Chapter 1 will illustrate all these topics by summarizing the works of the scholars mentioned above that are useful for the present analysis.
7 2. The notion of discourse
Discourse is a concept of paramount importance which has received great attention from a number of scholars and it represents the starting point of our analysis. First of all, we may suggest a very general definition of discourse, that is language in context. This is a very vague and broad description of the concept in question, but it highlights the fact that discourse takes into consideration not only the surface structure of language, but also the surrounding context in which it is used. To go deeper into the issue, we should start from the notions of langue and parole elaborated by the Swiss linguist Ferdinand de Saussure (1959). From his point of view, langue is “a system or code which is prior to actual language use” and it “is the social side of language” (Fairclough, 2015: 54). This means that langue represents all the possibilities we have in a specific language in order to express verbally our own ideas; then, it is the code that is accessible to an entire language community. On the contrary, parole is “what is actually said or written” and “is determined purely by individual choices, not socially at all” (Fairclough, 2015: 54). Therefore, while langue includes all the potential realizations of a language, parole represents the individual choices of each interlocutor and so the actual and personal language use. However, the Saussurean concept of parole was criticized by sociolinguistics which stated that, actually, parole is socially determined. Indeed, each individual is part of a social community and his/her identity and purposes are influenced by the social setting surrounding him/her. As a consequence, the notion of parole, i.e. language use, should be substituted by the term discourse.
If discourse is characterized also by a social aspect, this brings us to the belief that discourse can be considered as a form of social practice. In “Language and Power”, Fairclough (2015) proposes three implications of this notion. Firstly, “language is a part of society” (Fairclough, 2015: 55) meaning that “linguistic phenomena are social” and “social phenomena are linguistic”
(Fairclough, 2015: 56). Saying that linguistic phenomena are social means that every time a person speaks or writes, the resulting utterance has social effects and it is conditioned by the surrounding society. Even though we may not be aware of this, social conventions continuously affect the way we speak, the way we write and the way we behave. As a consequence, we may consider ourselves as “social individuals” in the sense that even though our linguistic choices are personal, they are however determined by the society in which we live. On the other hand, stating that social phenomena are linguistic is a way to say that language activity is part of social processes and practices (Fairclough, 2015: 56). For instance, discussing on the meaning of political expressions is a clear example of this concept. The second implication of considering
8 discourse as a social practice is that language is a social process (Fairclough, 2015: 56). In this case, discourse represents the whole process of interaction and it encompasses the process of production and the process of interpretation. In the former, the text is the product; while in the latter, it is the resource (Fairclough, 2015: 57). Consequently, text represents only a part of discourse and it can be examined from two different perspectives, i.e. production and interpretation. The third implication suggested by Fairclough (2015) is that language is socially conditioned. In order to better understand this aspect, we should consider the fact that when people communicate, they draw upon their background knowledge which includes ideas, beliefs, assumptions, general knowledge of the world, linguistic competence, and so on. All these are defined by Fairclough (2015) as “members’ resources” (MR). However, even if interlocutors may not have exactly the same background knowledge, it has, however, a social origin since “people internalize what is socially produced and made available to them”
(Fairclough, 2015: 57). Therefore, we can affirm that it exists a strong internal relationship between language and society through which society shapes language use.
In more specific terms, discourse is affected by social conditions of production and social conditions of interpretation which make reference to three different levels of social organisation: the social situation in which the interaction takes place, the social institution and the society as a whole (Fairclough, 2015: 58). These aspects of society affect members’
resources and make clear that when analysing a text, we should take into account also the relationship between texts, processes and their social conditions or, in other words, the relationship between text, interaction and context (Fairclough, 2015: 58). From this point of view, text is always part of an interaction because there will always be a person to be addressed to, namely a potential reader; and a text is always related to a context which affects the conditions of production and reception.
When we talk about discourse, we should consider the fact that there are some sets of conventions to conform to and they are referred to as orders of discourse.
“Orders of discourse are particular configurations of different genres, different discourse and different styles.”
(Fairclough, 2010: 232).
In accordance with the citation above, it exists a relationship between semiosis and social practices and social events. This existing link, which is the focus of Critical Discourse Analysis (CDA), is realized through three semiotic categories, which are genre, discourses and styles (Fairclough, 2012: 11). In particular, genres are “semiotic ways of acting and interacting such
9 as news or job interviews” (Fairclough, 2012: 11) and so they refer to the specific semiotic ways of construing meaning. Discourses are “semiotic ways of construing aspects of the world (physical, social or mental)” (Fairclough, 2012: 11), which are related to the different perspectives and positions of a social group. Styles are “identities, or ‘ways of being’, in their semiotic aspect” (Fairclough, 2012: 11), meaning that according to the social or professional figure, a specific interlocutor will assume the appropriate semiotic style. To illustrate the notion of this set of conventions, we can consider an educational institution such as university which is constituted as an order of discourse in which, as an example, a professor (style) delivers a lecture (discourse) about some research articles (genre). As a consequence, orders of discourse are the semiotic dimension of social practices that constitute social fields, institutions, organizations, etc. (Fairclough, 2012: 11).
On the basis of what has been said, we assume that it exists an interrelation between language and social life; therefore, the focus, in terms of discourse analysis, is on the understanding of which processes condition and socially control the meaning of words, utterances and discourse (Goodrich, 1987: 138-139). In general terms, the context in which communication occurs is determined by the organisation of social life in terms of the economic and socio-political orders; in addition, linguistic practices may assume different meanings according to the historical and social purposes of a group within a society (Goodrich, 1987:
137). Therefore, the speech forms employed by interlocutors depend on the specific socio- historical setting (Goodrich, 1987: 142-143). Of course, when we talk about economic and socio-political orders, we should take into account the role of ideological power which is exercised in discourse. Indeed, one of the ways to exercise power is through institutional practices which appear to be universal and commonsensical, thus becoming naturalized.
However, when these types of practices, and also types of discourse, work in a way to sustain unequal power relations, they are functioning ideologically (Fairclough, 2015: 64). Therefore, ideological power is the ability to make specific practices appear as universal and naturalized through discourse. Furthermore, power can be exercised through coercion or consent. Ideology is the mechanism to exercise power by consent and its main vehicle is exactly discourse (Fairclough, 2015: 65). As a consequence, it exists a strong relationship between discourse, ideology and power.
This general overview on the notion of discourse has been proposed in order to clarify some basic concepts which may be useful in the next chapters. The next paragraph introduces legal discourse which will be examined from different perspectives.
10 3. Legal discourse: historical and cultural background
Legal discourse is a very broad concept which includes a variety of aspects such as language, society, history, authority, etc. and it may be considered as part of our lives. Indeed, law regulates almost every aspect of our daily routines (family, house, work, study, etc.). As a consequence, legal discourse is not restricted to the sphere of professionals, but it often involves ordinary people, even though they may encounter some difficulties in understanding the language of the law. When talking about legal discourse or language of the law, we refer to a great variety of registers and discourse types such as written contracts, wills, insurance policies, statutory laws, various forms of court language (jury instructions, opening statements, closing arguments, examination of witnesses), but also to interactions between institutional operatives and ordinary citizens (Finegan, 2012: 483). Of course, all these types of written and oral texts present different features in terms of language, structure and functions and they reflect the diversity of law itself (Berūkštienė, 2016: abstract).
Considering that the domain of law is a very complex one, we should start from giving a general overview of its historical background. First of all, it is important to precise that in the past, Common Law referred to “English Law” which originated in 1066 with the Battle of Hastings. In that occasion, Willian of Normandy defeated the last Anglo-Saxon king and instituted a new kind of feudalism in England with the purpose to strengthen the monarchy and the power of the king. In addition, he introduced a centralized administration for the whole country which became known as the Common Law. However, this set of rules followed the colonial expansion of the English Empire and it was then exported in other countries, namely United States, India, Australia, New Zealand and Africa. Nevertheless, this spread of the Common law was not uniform, so that in some countries the legal system presented some differences from the English one. In particular, the 4th of July 1776, the United States became independent countries with the declaration of independence approved by the congress of the 13 colonies of Philadelphia. Through the years, the United States experienced an important economic development thanks to which, today, the U.S. model of Common law is the most exported. As far as the other colonies are concerned, they became more independent but still retaining the English monarch as the Head of the State. Today, Common law has assumed several meanings and it should not be confused with the British Commonwealth, which is a voluntary association of 53 sovereign and independent countries cooperating in specific domains such as trade, investment and development programs for new nations.
11 As regards its multiple meanings, English Common Law firstly refers to the law of England, Wales and the Isle of Wight; Scotland and Northern Ireland have an independent legal system.
Furthermore, English Common Law may be considered as opposed to the U.S. model, to the Civil Law countries which present a different legal system, to Equity and finally to Statute Law.
Equity is a set of rules which were established by the ancient English courts directed by the Lord Chancellor. The aim of these rules was to decide on a case when the Common law could have not solved it in an appropriate manner. On the other hand, Statute Law refers to all those written rules deriving from the acts of Parliament; by contrast, Common law makes reference to the laws coming from the decisions of courts and judges; this means that “common” refers to judge-made law. As regards Civil Law, it concerns countries such as Italy, France, Germany, Spain and other European countries, and it is characterised by the strong influence of Roman law, even if it represents a different evolution. Unlike Common law which had an uninterrupted legal continuity, Civil law has been subject to radical changes through the years (French Revolution, the birth of national codes, etc.), so that it developed in a discontinuous way.
However, one of the main aspects of Civil Law is that it is based on written rules; this means that law comes from acts of Parliament. On the contrary, in Common law, rules were not created by means of legislation, but by the courts using their judicial decisions as precedent; this practice is known as the rule of binding precedent or stare decisis, according to which a judge has the duty to rule a case in accordance with the principles of law developed by courts in earlier judicial decisions, thus the precedent should always be respected. Nevertheless, in both English and U.S. law a process of “statutification” took place and numerous written rules (statutes, acts of Parliament) were introduced. However, case law is still predominant. As regards the Constitution, which is a set of fundamental written principles governing a nation, it is typical of civil law countries. In Common law, we should distinguish the U.S., which have a rigid and written constitution, from the English system which has a constitutional law but without a written constitution. Therefore, in very general terms, common law is predominantly based on case law while Civil law on written rules which prevail over court decisions. However, even in Civil law countries, there are some cases in which the decisions of higher courts, such as the court of cassation, are considered as binding. As a consequence, Common law and Civil Law are considered as two different legal systems, but it should be recognized that they present some similarities.
Nonetheless, at the level of legal education, the figures of lawyers and judges and the style of laws and judgements, we may find some dissimilarities. First of all, in Civil law countries legal education is academic, since it is necessary to have a law degree; on the contrary, in the
12 U.S., even though a Law School (3 years) has to be attended, the study is more practical, while in the English system, there is no need to have a degree because the profession order organises practical courses with solicitors or barristers and they terminate with a final exam. As regards lawyers and judges, in Civil law countries their career is separate and a judge is submitted to a public state examination; in Common law, all layers can become judges since these are appointed by experienced layers. With respect to the style of laws, they are more general and abstract in Civil law countries, while in Common law countries they are more detailed; this can be explained by the fact that English law is predominantly based on case law. Similarly, judgements tend to be “impersonal” in Civil law countries in which the final decision is given by the entire court. On the other hand, Common law is characterised by a more “personal”
judgement in the sense that judicial decisions are written in the first person, personal opinions of judges are published and it is necessary at least the majority of the judges in order to approve the final decision. Notwithstanding all the differences mentioned, both Civil Law and Common law belong to the Western legal tradition.
3.1 Legal discourse: institutionalisation, intradiscourse and interdiscourse
After some general clarifications on the concept of discourse and on the historical and cultural background of the domain of law, we can now better develop the notion of legal discourse. On the basis of what has been said above, it is clear that studying legal discourse, in a discourse analysis perspective, means to investigate the structure and function of language in oral and written texts, taking into account the “contextual embeddedness of language” (Heffer, 2005:
XVI). In other words, text is determined by a great variety of factors, such as the medium, the intentions and beliefs of the interlocutors, the social aim of the act of communication and the relation to other texts (Heffer, 2005: XVI). In addition to that, legal discourse and more specifically language is the primary tool through which the power of the law is realized and exercised (Conley and O’Barr, 2005: 129). Furthermore, Goodrich (1987), in Legal Discourse, states that:
“law both represents and serves to perpetuate the patterns of hierarchy and domination constitutive of a profoundly inegalitarian social system.”
(Goodrich, 1987: 131)
13 This notion of law as a means of domination implies that any account of law is both a theoretical system, that is a form, and the practice of that system, i.e. content (Goodrich, 1987: 131). As a consequence, legal discourse takes into consideration both the form, namely the structure of the language employed, and the content in terms of social practice. However, another point of great concern is the fact that the social practice of law is based on the ideology that everyone has to know the law, but the problem is that legal language and legal practice are characterized by such opacity and obscurity that it becomes inaccessible to non-specialists; this may be viewed as a paradox of legal culture (Goodrich, 1987: 7). In any case, we should remember that the domain of law is extremely vast and the study of legal discourse corresponds to a partial analysis of law. Of course, it can give us an idea of how legal institutions work, since they act through discursive practices, but we cannot reduce the study of law to the study of legal discourse (Goodrich, 1987: 158). Before examining legal discourse in more detail, we could mention other two perspectives of the issue in question, which were proposed by Greimas (1976, 1982) and Burton and Carlens (1979). Goodrich affirms that, according to the first linguist, legal language is a “language of verification” (Goodrich, 1987: 161). In addition, following Greimas’
(1976, 1982) viewpoint, Goodrich affirms:
“legal discourse ‘transforms’ and or ‘translates’ (corrects and verifies) ordinary language and ordinary meanings into the closed code of the legal system.”
(Goodrich, 1987: 161) According to Greimas’ (1976, 1982) view, legal discourse is based on a process of verification of common language which is aimed at conforming to the exclusive code of a legal system.
Besides, the grammatical rules of the language of law are implicit within ‘practical jurisprudence’, which means that judicial utterances must conform to the law in force (Goodrich, 1987: 161). On the other hand, Burton and Carlens (1979) pay more attention to the ideological aspect. Indeed, they stated that legal argument:
“particularises or translates a series of sociological relations and conflicts into a narrow set of legally relevant facts or issues”.
(Goodrich, 1987: 167) Similarly to Greimas (1976, 1982), they propose a process of translation but, instead of focusing on the surface structure of language, they centre their theory on social relations and real people that are basically “transformed” into abstract legal concepts. This can be referred to as a process of decontextualization. Furthermore, Burton and Carlens (1979) believe that the meaning of a legal text can be retrieved in relation to an idealised order which is imposed on a series of
14 material issues and social conflicts, which have to be reinterpreted in legal terms (Goodrich, 1987: 167). As a consequence, their analysis focuses primarily and almost exclusively on ideology which is insufficient. Indeed, legal discourse should be interpreted in its entirety, thus including the history of its institutionalisation, its interpretative techniques, its meta-language but also the interrelationships between multiple audiences and different practical effects (Goodrich, 1987: 169).
Consequently, in light of the above, we could analyse legal discourse by means of the so called “discursive formations” which are defined in terms of three levels: institutionalisation, intradiscourse and interdiscourse. These three aspects allow us to understand how meaning is appropriated and restricted to specific institutional and discursive sites and modalities; in other words, they clarify how the hierarchical and communicative context are realised in the units of meaning which determine specific discourses (Goodrich, 1987: 144).
3.1.1 Institutionalisation of legal discourse
Institutionalisation refers to the material basis of discourse and so to the fact that it exists a relationship between (legal) discourse and institutions. In particular, Volosinov (1973), starting from the assumption that collective relations and interactions of groups influence verbal communication, examines the “institutionalisation of such relations in terms of the hierarchical organisation of economic, social and communicative exchange” (Goodrich, 1987: 144-145).
Therefore, if there is an affinity between legal discourse and institutions, it is important to analyse their social roles and their ability to appropriate specific ideological meanings for their specific social purposes (Goodrich, 1987: 145). In more practical terms, institutionalisation of discourse may be interpreted in simple sociological terms. Foucault (1981) employs the term social authorship of communicative acts. This notion refers mainly to two aspects. The first corresponds to the speaker that should be identified according to his/her social role; we should wonder who has the right to utter such a discourse. The second aspect relates to the specific institutional site and the source of the discourse in question. This implies that discourse is determined by a wide range of factors such as “particular roles, statutes, professions and so on”
(Goodrich, 1987: 145). As an example, if we think of an institution such as the court, we well know that there are specific conventions to observe in terms of procedures, language, professional roles and topics to discuss. As a matter of fact, the context of legal discourse is characterised by specific institutions of high social status and prominence that can be accessed by a limited portion of people and professionals. The legal institutions and discourse are
15 different from others because they are “institutionally authorised by a wide variety of visible organisational and socio-linguistic insignia of hierarchy, status, power and wealth” (Goodrich, 1987: 171). Therefore, in addition to its specific linguistic features, legal discourse should be analysed bearing in mind the institutions it represents, because they explain its authoritative and ideological aspect. In the context of institutionalisation, legal education is of prominent importance since it is the starting point for learning how to encode the messages of authority and legitimacy of the whole system into the social and discursive practices of future professionals (Goodrich, 1987: 172). This is the demonstration of the fact that legal discourse reflects the institutions it represents.
3.1.2 Legal intradiscourse
Intradiscourse corresponds to the “self-articulation or internal structure of a discourse”
(Goodrich, 1987: 146). In other words, it is the surface structure of a text which is manifest to everyone. This implies that intradiscourse gives access to the first level of potential meaning of a text which will have to be examined in more detail in relation to other extra-linguistic factors.
However, the first level includes the analysis of language in terms of syntax, grammar, lexis, logical and temporal sequence and, more broadly, cohesion, which is achieved by means of linguistic devices such as conjunctions, substitutions, ellipsis and anaphora. (Goodrich, 1987:
147-148).
In more specific terms, legal intradiscourse is characterized by a high level of precision in terms of syntax and lexis, but also by a certain degree of opacity. These features represent the distinctive and exclusive character of legal language and discourse in relation to other discourses and languages. According to this view, legal language is perceived as unitary, authoritative, monologic, universal and rational thus acting as a sort of non-communication, meaning that it is opaque and occlusive to all other discourses (Goodrich, 1987: 175). The importance of legal intradiscourse can be discerned in the fact that its exclusive structure justifies the content and functions of the semantic choices (i.e. social, political and ideological) it perpetuates; besides, legal problems are treated as problems of syntax, lexis or grammar, and this is the way through which the law controls and manages the social and political relations (Goodrich, 1987: 176). As a consequence, legal intradiscourse plays a pivotal role since any choice of words and syntactic constructions may assume specific meanings in relation to the context of communication; put it another way, the authority of legal discourse is conferred by its formal characteristics as vehicles of expression or of meaning (Goodrich,1987: 177). Even
16 though the features of legal English will be dealt with in paragraph 3.2, it is important to highlight the fact that legal vocabulary may be considered as a “symbolic lexicon” since it gives great importance to the legal signifier or legal entity as an entity in itself (Goodrich, 1987: 177).
This value can be explained by the fact that “law is the language of time-honoured tradition”, in the sense that it has an historical dimension that is still perceived in language nowadays through Latinisms and archaic words, for example. It is also in its past tradition that legal language has assumed its authoritative character (Goodrich, 1987: 178). Another aspect to consider is the relationship between vocabulary and syntax. If the first is characterised by precise and symbolic words, the second has a tendency to generalisation (for instance, non- agentive passives) which establishes a certain level of impersonality (Goodrich, 1987: 180).
Indeed, by means of generalisation, real peoples, situations, conflicts and their relations are decontextualized in order to achieve a universal character. However, intradiscourse must be embedded in its context, namely interdiscourse and the social order which controls discourse and meaning in accordance with the institutional setting.
3.1.3 Legal interdiscourse
In very general terms, interdiscourse (the relation to other discourses) relates to the social order of discursive formations. Pêcheux (1982) defines it as:
“the expression of a specific hegemony, or of the ideological order of a given society in a particular epoch.”
(Goodrich, 1987: 150) According to his perspective, interdiscourse may be seen as the connection between ideology and the text localised in its historical context (Goodrich, 1987: 150). This presupposes that the semantic material is determined by extra-textual factors and this is exactly what can be defined as preconstruction. Therefore articulation, which is an intra-linguistic process, is always determined and preceded by an anterior extra-linguistic axis of language (Goodrich, 1987: 15).
This notion is a way to explain that intradiscourse, the surface language, is always determined by specific cognitive and ideological preconstructions. As a consequence, meaning must be examined within its socio-historical context.
As far as legal interdiscourse is concerned, it “specifies the hierarchical relationship
between law, other discourses and the social whole” (Goodrich, 1987: 183). As a consequence, intradiscourse and interdiscourse are closely related and they both focus on meaning, but the difference is based on the kind of analysis which is carried out: on the one hand the focal point
17 is the monologic dimension of legal discourse, on the other hand, it is the dialogic one (Goodrich, 1987: 183). The dialogic dimension is particular evident in the persuasive aspect of authority. To put it in clearer terms, an authoritative language is able to present itself as a sort of science, but it also has the special power to persuade; and this dialogic process of persuasion predetermines the conditions of its reception (Goodrich, 1987: 183). Furthermore, this authoritative aspect will enable legal discourse to exclude and stigmatise all other discourses in contrast with its basic beliefs and ideologies, thus assuming a character of exclusion. Therefore, in accordance with what has been said, the analysis of interdiscourse is based on the preconstructions of meaning according to which legal discourse differentiates itself from other discourses and it endeavours to pursue its social and political aims by controlling the conditions of its reception and its relation to other codes and contexts of its audience (Goodrich, 1987:
186). In light of this, meaning, from an interdiscursive perspective, is to be viewed in terms of semantic relations.
All these concepts of authority, persuasion and exclusion may be brought together under the notion of sovereignty which should be understood as a semantic principle. Indeed, even though it concerns a series of norms regarding, for example, the separation of powers and the role of institutions, it should be viewed in terms of techniques and meanings within legal interdiscourse. In other terms, by examining the actual usage of sovereignty in legal discourse, it is possible to define it (sovereignty) through a set of axiomatic meanings which are traceable in the hierarchy of legal discourse (Goodrich, 1987: 188). Furthermore, the authoritative character of legal discourse originates from its historical tradition. In particular, meaning attributed to legal words is produced “through the privilege accorded to pre-existent sovereignties” (Goodrich, 1987: 189) in the sense that the legislative intentions and decisions of the past justify the actual hierarchy and sovereignty of legal notions, regulation and decisions.
This is exactly in line with the notion of stare decisis, already mentioned in paragraph 3, according to which previous courts decisions are considered as binding so that judges have to solve cases in accordance with the principles of law developed by courts in earlier judicial decisions. To sum up, legal interdiscourse is characterised by a series of linguistic and semantic techniques which perpetuate the social image of legal discourse, but also its authority in terms of meaning control as a persuasive practice (Goodrich, 1987: 187).
3.2 Legal English
18 Legal English is a complex type of discourse and it has often been criticized for its obscurity.
In this context, we should mention the “Plain English Campaign”, which is an independent group fighting for plain English in public communication. Thanks to its work, the legislature and the judiciary have clarified and simplified part of the legal language that lay people need to understand in order to correctly deal with the legal system. Nevertheless, many lawyers claim that linguistic precision and technical accuracy are an essential prerequisite of good justice and legal certainty (Alcaraz and Hughes, 2002: 4-5); in addition, technical language may not have an equivalent in everyday language, making it more difficult to explain some specific notions.
In order to be aware of the complexity of legal language, it is important to illustrate some of the main features of this kind of discourse. First of all, legal English is characterized by the influence of Roman Law and Latin, which was the lingua franca in Europe during the Middle Ages. Consequently, a lot of Latin phrases are commonly used such as Nulla poena sine lege, meaning “No punishment except in accordance with the law” (Alcaraz and Hughes, 2002: 5) or Ex debito justitiae, i.e. “as a matter of right”; in other cases, instead of the original Latin expression, experts may use a calque, e.g. mors civilis/civil death (Alcaraz and Hughes, 2002:
6). Furthermore, the Norman invasion of 1066 determined the adoption by legal English of terms of French or Norman origin. Some examples are the terms ending in -age, -ee, -ant or - ance: damages, which is “the amount of money which a plaintiff (the person suing) may be awarded in a lawsuit” (Law.com), legatee, i.e. “a person or organization receiving a gift of an object or money under the terms of the will of a person who has died” (Law.com), defendant,
“that is the party sued in a civil lawsuit or the party charged with a crime in a criminal prosecution” (Law.com), acceptance, which means to “agree verbally or in writing to the terms of a contract” (Law.com). Another typical feature is the formal register and the archaic diction:
stiffness, formality, old-fashioned syntax and antiquated vocabulary are very frequent and they allow a higher degree of clarity and certainty for specialists of the discipline (Alcaraz and Hughes, 2002: 6-7). Even in oral speech, in the superior courts, British judges use expressions like “my learned friend” or “my noble and learned colleague” to refer to their fellows. An example of antique-sounding sentence is the following: “it does not lie in the defendant’s mouth to say that…”, meaning that the defendant does not have the competence or right to say that (Alcaraz and Hughes, 2002: 8). Besides, compound adverbs based on deictics recall the archaic style and they are usually used to refer to the documents in which they appear or to other discussions (hereinafter, thereunder, hereby, whereby, etc.); a similar tone is given by prepositional phrases such as pursuant to, subject to, without prejudice to, notwithstanding and so on. Moreover, redundancy is a specific feature of legal discourse that consists in the
19 combination of two or more synonyms, which can become fixed expressions like, for example, null and void, which means “with no legal effect” (Alcaraz and Hughes, 2002: 9-10). Another aspect to mention is the frequent use of performative verbs which have concrete legal effects through the act of pronouncing them; some examples are: agree, promise, certify, affirm, etc.
(Alcaraz and Hughes, 2002: 10-11). Before concluding, there are two other remarkable characteristics which could cause some problems to non-experts. The former refers to legal vocabulary which includes not only purely technical terms (solicitor, barrister, bring an action, estoppel and so on), which can be found only in the legal field, but also semi-technical terms which are usually common words that have acquired additional meaning in the legal context;
therefore, it is more difficult to understand the right meaning of the word in question. The latter makes reference to the very long and complex sentences which are characterized by the abundance of subordinates and by the postponement of the main verbs at the end of the sentence (Alcaraz and Hughes, 2002: 16-19).
All these linguistic features make legal English very difficult to understand and hardly accessible to the lay audience; but it is also true that language reflects the complexity of the system of law which cannot be easily changed. As a consequence, popularization of legal discourse is essential for rendering it intelligible to non-experts.
3.2.1 Performatives in legal discourse
Performatives are a particular kind of utterances that, instead of reporting the act of doing something, they actually constitute the performing of that action (Fiorito, 2018: 101). This notion has been developed by J.L. Austin in How to do Things with Words (1956) and it is part of the Speech Act Theory, which is based on the notion that words can actually carry out actions and it is particularly useful for the classification of utterances. In accordance with this theory, two main categories of speech acts can be distinguished: constative and performative. The former corresponds basically to an utterance that describes a situation and it can be evaluated as being true or false. The latter actually performs an action simply by its uttering. As an example, “I sentence you to 20-year prison” is a performative speech act because only by being spoken, it brings about a significant act in the real world. Another typical example that should be mentioned is: “I now pronounce you husband and wife” (Fiorito, 2018: 105). In this case, the sentence pronounced by the priest actually creates an “official” relationship between bride and groom, thus having specific social effects in the world. Unlike constatives, which can be true or false, performatives can be felicitous or infelicitous meaning that the act is accomplished
20 successfully or not, i.e. it meets felicity conditions. In particular, these refer to social conventions which characterise the society in which the utterance is pronounced. In light of this, we may distinguish highly institutionalised performatives from less formal speech acts (Fiorito, 2018: 102). The first case is typical of a marriage or a judge pronouncing a sentence, for example; these two situations require a particular kind of participants having specific social roles according to which they have the right to pronounce certain utterances. The second case refers to social practices such as thanking, warning, greeting somebody, etc., which of course vary from culture to culture. In the field of legal discourse, performatives are employed because of the surrounding institutional context, which requires performative speech acts to convey the force of the utterance and so its authoritative tone. Therefore, speech acts play a pivotal role in legal discourse; for instance, laws, contracts and wills may be viewed as speech acts since they give orders, authorizations, they create rights, permissions and obligations; then, they basically rule our lives (Fiorito, 2018: 101-102). This is exactly the reason why legal language endeavours to convey precision and certainty through linguistic devices (as an example, repetitions and specialised vocabulary) and it gives great importance to legal words, since changing one of them means to convey a different meaning.
However, it is important to precise that, even though speech acts usually refer to oral interactions whereas legal discourse is primarily written, it is possible to categorize legal texts as “speech acts of a larger size” (Fiorito, 2018: 106). The main difference between oral speech acts and “written performatives” is the fact that the illocutionary act, which refers to the function or purpose of an utterance, and the perlocutionary act, which is the effect of the speech act and so the consequences of its uttering, occur in two different moments. In other words, the reader response is not immediate to the moment of production of the text. However, this does not exclude the fact that the author of the text writes by bearing in mind the target reader and so making hypotheses on his/her reaction. On the other hand, the reader reads the written document as if it were pronounced orally by the author. As a consequence, even in the context of written legal texts, performatives can affect and change the status of the world. Examples of legal documents which may perform this kind of speech acts are contracts, wills, statutes, constitutions, deeds, orders, pleadings, etc. (Fiorito, 2018: 106-107).
As regards felicitous conditions in the legal context, they are fundamental because legal performatives have legal effects only when these social institutionalized conventions are met.
These conditions are often specified in written form; for example, in a contract for the transfer of property, the rights and duties of the parties are defined in the agreement and if they are respected, the contract will create legal effects. In this context, lexical choices are fundamental
