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50 LEGAL TEXT AS TEXT in ACTION Eva Pavlíčková This Paper Presents LEGAL TEXT AS TEXT IN ACTION Eva Pavlí čková This paper presents results of our research conducted in terms of speech act theory into legal language, namely into legislative texts – randomly selected British bills and acts, found on the Internet, and into certain types of legal documents such as contracts, last wills and testaments, and affidavits. The investigation was encouraged by the statement of John Gibbons (1994) who in General Editor’s Preface defines legal language “not just as a set of forms but also as discourse, as action ” and that of Halliday (1985: 47) who points out that “the speech functions adopted in legislation clearly typify its nature: as text in action ”. In general, a speech act is performed when the speaker/writer utters/writes an utterance with the aim to fulfil their intention. In addition to a proposition their utterance contains certain illocutionary force. We base on Austin who determined three components of the internal structure of a speech act as follows: locutionary meaning – the literal, propositional meaning of what is said or written, which is always clear outside any context; it is the meaning of the form without defining its function, without setting it into a particular context; illocutionary force – the meaning of the form functioning in an actual setting; it is the meaning intended by the speaker/writer in the given context. It is the pragmatic force of an utterance that can be understood only within the particular context; perlocutionary reaction (or effect according to Yule, 1996:49) – this is the non-linguistic uptake brought about in the hearer/reader who recognises the illocutionary force of an utterance. From pragmatic point of view, in legal writing too the most important component of an utterance is illocutionary force , which is, in our understanding, roughly equivalent to its pragmatic meaning . We consider illocutionary force to be a certain manipulating tool of the speaker/writer to achieve their intention. By means of illocutionary force the speaker tries to control the situation. In the legal setting the controlling role and the illocutionary potential are strengthened by the fact that the creator (author/writer) of an act is a representative of an authoritative body. Here illocutionary force also includes the force of the authorial imperative . From the pragmatic and legal points of view the perlocutionary effect does not seem to be less important. Widdowson (1996: 131) defines a speech act similarly to Austin. According to him a speech act is an act of communication performed by the use of language, either in speech or writing , involving reference , force and effect . Yule (1996: 47) characterises speech acts as “actions performed via utterances”. In Graham Lock’s view (1997: 174) “speech acts are labels for the kinds of things we are doing when we act upon one another through language”. The Slovak linguist Ján Horecký (2000: 14) uses the term “an utterance act”. He considers it “a basic unit of communication that says something about reality and includes a proposition and an intention”. Jolana Nižníková (1994: 3) states, “ … elementary, basic units of communication, divided on the basis of phonic, semantic and/or syntactic criteria are called speech acts, utterance acts or utterances”. According to her (ibid: 5) they are “sentences with a certain communicative function. In addition to their propositional constituent and communicative function they include a modal aspect”. Richards, Platt and Weber in Longman Dictionary of Applied Linguistics (1992: 264) regard it as an utterance , a functional unit in communication . Andrew D. Cohen in his Speech Acts (1997: 384) identically finds a speech act “a functional unit in communication” . ”. Peter Trudgill (1992: 69) in Language and Society says that the term is “used in discourse analysis, ethnography of speaking and 50 pragmatics for the minimal unit of analysis of conversational interaction ”. Most linguists admit that a speech act is an act of communication performed by the use of language, either in speech or writing. As we analyse speech acts carried out in legal writing, for the purposes of this study we dare to use the term a legal language act . In general, a felicitous speech act is an act whose form, content and intentions constructed by the speaker/writer in a certain context are precisely reconstructed in the mind of the hearer/ reader. In other words, successful speech act performance demands to formulate locutionary and illocutionary meanings clearly so that their combination can make a desired impact on the target addressee (in face-to face communication also on their senses). Clear understanding of illocutionary force makes the target addressee perform a perlocutionary act demanded by the creator (author/writer). It is important to realise that good transferability of a speech act includes its performance as well as its interpretation . Performance is on the side of the creator (writer/speaker), interpretation on the side of the reader/hearer. In Slovak linguistics, the term ‘interpretation competence’ was introduced by Dolník and Bajzíková (1998: 99). According to them “interpretation competence is the ability of a language user to correlate the structure of linguistic expressions of which a text is created with the structure of his knowledge relevant to the understanding of the text” (ibid: 103). In the process of performance and interpretation reference and inference play an important role. Reference according to Yule (1996: 17) “is an act in which the speaker, or writer, uses linguistic forms to enable the listener, or reader, to identify something”. Inference is the role of the reader/listener to guess by reasoning what is the writer/speaker’s intention. In Yule’s understanding it is “the listener’s task to infer correctly which entity the speaker intends to identify” (ibid: 17). The role of inference in text interpretation is also emphasised by Dolník and Bajzíková (1998: 117). According to them “its function lies in actualisation of the knowledge which is not explicitly expressed in the text”. They (ibid: 119) also mention “pragmatic interpretation (understanding) of a text which is based on the recipient’s pragmatically relevant knowledge”. Everything what relates to speech act transferability in general can be applied to transferability of legal language acts. The less pragmatic, professional linguistic and general linguistic knowledge the performance and interpretation of a speech act require, the more probable and easier its transferability is. Successful performance and successful interpretation of a legal language act require not only the creator’s (author/writer’s) and reader’s general “pragmatic competence” but also their good general language competence as well as “language specific-semantic competence”. The terms in quotation marks are taken from Blum-Kulka (1981: 91) who also points out that “the utterance is interpreted on the bases of shared assumptions between the speaker/writer and the hearer/reader over and above the linguistic content of the sentence used”. (ibid: 90) According to Austin (1962: 51) there is an effective test how to find out whether an utterance that contains a performative verb is capable of performing a speech act. It requires meeting the several conditions. The first condition is the possibility of meaningful insertion of the adverb hereby . (Hereby means by means of this statement, law, etc., by doing or saying this.) It emphasises the performativeness of a particular speech act. The next condition is the use of a performative verb in the present simple tense . While the utterance of I warn you that we will take action against you will under normal circumstances constitute an act of warning, the utterance of I am warning you that your tenants will take action against you is not considered to be a speech act. In Austin’s view (1962: 64) the latter answers the question What are you doing? and it is only a “description of an act of warning, something that one might say to describe and make explicit the act of warning which is simultaneously being given”. In his view an utterance that contains a performative verb can perform a speech act only if two more conditions are fulfilled: 51 - if the subject is expressed by the first person I/we - if the object is expressed by the second person you. Austin (1962: 57) admitted the existence of performatives with different structures but only if such an utterance “can be paraphrased in the form of the basic structure”. He pointed out that “any utterance which is in fact performative should be reducible or expandable or analysable into a form with a verb in the first person singular present indicative active”. The study of the performative utterance and morphological characteristics of the performative verb occurring in legal texts proves that the performative verb is not used inevitably in its model form (base form with a first-person pronoun subject). It is also found in other morphological forms (as defined by Greenbaum and Quirk, 1995: 25). In our view, there are different reasons for using non-traditional structural linguistic devices. Therefore our research is directed at the analysis of some characteristics of the performative verb. We would like to mention the importance of the adverb hereby in legal performative utterances. According to Melinkoff (1963: 305) “hereby gives the flavour of the law” and “it is a marker of a legal performative”. We find it surprising that the adverb accompanies the verbs even in the passive voice. In our view, it enhances the illocutionary force of the act and adds the passive verb a certain kind of ‘performativeness’. We think that in the legal performative utterance with the verb in the present simple tense, both in the passive and active voice, the adverb hereby undertakes the role similar to the one played by the progressive aspect in other discourse types.
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