LEGAL TEXT AS TEXT IN ACTION

Eva Pavlí čková

This paper presents results of our research conducted in terms of 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 is capable of performing a speech act. It requires meeting the several conditions. The first condition is the possibility of meaningful insertion of the 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 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 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. As the function of the adverb hereby is to emphasise the performativeness of an utterance, this adverb is also a decisive marker in our speech act analysis. The findings we gained from our piece of research prove that the adverb is a frequent but not an inevitable companion of the performative verb. The tense is one of the examined characteristics of the performative verb. In the analysed texts performative verbs predominantly occur in the present simple tense in a positive verb phrase. A:I hereby give and bequeath the sum of One Hundred Thousand Dollars ($100,000) to my nephew, JOSEPH DIMAGGIO (son of my deceased brother, MIKE DIMAGGIO). (The Last Will and Testament of Joseph P. DiMaggio) We also discovered several phrases. We believe that they can also be used to perform legal language acts. According to our findings the usage of a negative performative verb form is semantically preconditioned. If a negative form of one performative verb has the meaning that may be expressed by a positive form of another performative verb, then, in our view, it is capable of performing a legal language act. The Engineer’s approval of the documents does not relieve the Contractor from any responsibility for the obligations included in the Contract. Based on our analysis we claim that the most common morphological verb form in bills and acts is the present tense indicative mood -s form . The same applies to the analysed contracts and agreements. The Contractor hereby undertakes to submit to the Fund by… (the date) at the latest a Final Report. The Lessee hereby acknowledges delivery and acceptance of the aforesaid Property upon terms and conditions of this Lease. The Trustee, by joining in the execution of this Agreement, hereby signifies his acceptance of this trust

52 In last wills and testaments, and affidavits the most frequent verb form is the present tense indicative mood base form with the first-person pronoun subject I. In the analysed legal documents it is used mostly but not inevitably with hereby . ♦ with hereby I, (the name of a person), of (the residence), hereby appoint (the name of a person), of (the residence), as my attorney in fact of to act in my capacity to do every act that I may legally do through an attorney in fact. ♦ with hereby and the emphasising do Many times, where a legal language act is expressed by hereby, it is strengthened by do . I, (the name of the person), of (the residence), do hereby sell and convey to (the name of a person), and his heirs, executors, administrators, successors and assigns the following property (the description of the property follows). I, (the name of a person), (the address), do hereby certify the attached is a true and correct copy of the certificate of incorporation of (the name of the company), filed in this office on …(the date). ♦ with hereby and the emphasising do & now Sometimes the deictic expression now emphasises the present place and the present moment of the act being performed. I do now hereby revoke said Trust, with all the principal thereof reverting absolutely to me, with all right and title thereto. The performative verb in the examined texts also occurs in non-finite morphological forms. Non- forms such as –ing present form and –ed past participle form, especially in non-finite verb phrases, are not generally recognised as the forms used to perform speech acts. These forms, however, are found in the investigated texts and they seem to rank among the means used for legal language act performance. Non-finite verb phrases: -ing present participle form ♦ with hereby I, (the name of a person, residing at …, being of sound and disposing mind and memory and considering the uncertainty of this Life, do make, publish and declare this my Last Will and testament, as follows, hereby revoking and making void any other will by me heretofore made. ♦ without hereby I nominate, constitute and appoint XY (the name of a person and his/her address) Executrix and Trustee of the trust, giving to the said Executrix and Trustee full power and authority to sell, convey, mortgage, lease, pledge or exchange in his/her discretion, all or any part of my estate… -ed past participle form In our examples the –ed past participle form is located in both finite and non-finite verb phrases. Finite verb phrases: ♦ with hereby

53 …(the name of a person), (hereinafter referred to as ‘Releaser’), for and in consideration of the sum of … and other valuable consideration received from or on behalf of (the name of a person), (hereinafter referred to as ‘Releasee’), the receipt of which is hereby acknowledged …

♦ without hereby Most of the found examples do not contain the adverb hereby . The Lessee is precluded from sub-letting the Tenement or from assigning the lease to third parties. The Executrix, therein named, is duly authorized to administer the estate of the decedent agreeably to said Will. The Engineer is required to obtain the Purchaser’s prior specific approval before exercising the following duties. Non-finite verb phrases: Signed , sealed , published and declared to be the Last Will and Testament by … in the presence of all of us, who in the presence and at the request, and in the presence of each other, have hereunto subscribed our names as witnesses . The performative verb in the present tense, progressive aspect is not generally considered to be able to perform a speech act. In the examined contracts and agreements a few examples of a performative verb in the present continuous tense were observed . Allan claims, “a performative may occur in either the simple or progressive aspect”. (http://www.artsmonash.edu.au/ling/speechactsallan. shmtl ) his view encourages us to think that the present tense combined with the progressive aspect is a sign of performativeness even though such examples do not occur abundantly. Hereunder the Lessor is hereby granting on temporary Lease to the Tenant who accepts the tenement at (the name of the place). Agreement entered into between: (the name of a person), hereinafter referred to as the Lessee on the one part and (the name of a person) on the other part, hereinafter referred to as the Lessor whereby Lessor is hereby granting on Lease to Lessee who accepts the tenement solely for residential purposes namely:… There is also a generally held view that the present perfect tense cannot be used to perform speech acts. However, Kurzon (1986: 10) admits the possibility of performing a speech act by a performative verb in the present perfect tense . During our analysis we found several examples of performative verbs in the present perfect tense and we also consider them to be the devices for carrying out legal language acts. Since the amount of the unsettled obligations and debts between the contractual parties is different, the Contractual Parties have agreed that they will perform a mutual inclusion of debts and obligations in the amount of (the amount of money) and the difference in the amount of (the amount of money) against…. Company, which is payable until (the date). WHEREAS, Europay has also agreed to provide to Licensee certain maintenance and support services for the Software. In some legal documents the use of the present perfect tense may well be explained as a lapse on the lawyer’s part due to his language misapplication but his intention – to perform

54 a legal language act – is clear in the analysed document; while the use of the present perfect tense in the old enacting formula, still valid in British Finance Acts seems to be intentional. Most Gracious Sovereign, We , Your Majesty’s most dutiful and loyal subjects, the Commons of the United Kingdom in Parliament assembled, towards raising the necessary supplies to defray Your Majesty’s public expenses, and making an addition to the public revenue, have freely and voluntarily resolved to give and grant unto Your Majesty the several duties hereinafter mentioned; and do therefore most humbly beseech Your Majesty that it may be enacted, and be it enacted, etc. The voice is another examined category of the performative verb in the present research. Although the model structure of the performative utterance is claimed to contain the performative verb in the active voice , in both studied types of texts, examples containing performative verbs in the passive voice are found. Kurzon (1986: 6) indirectly admits the existence of the performative verb in the passive voice by providing the following example of a potential speech act you are authorised to pay, which may be rewritten into I/we hereby authorise you to pay . It is hereby declared that any reference in this section to a term of a contract includes a reference to a term which although not contained in a contract is incorporated in the contract by another term of the contract. (Sale of Goods Act 1979) An Economic and Social Committee is hereby established . (EC Legislation, Chapter 3, 193) Citizenship of the Union is hereby established . (EC Legislation, Chapter 2, Article 8) A European Investment Bank is hereby established , which shall act within the limits of the powers conferred upon it by this Treaty and the Statute annexed thereto. (EC Legislation, ) (33) the enactments specified in Schedule 6 to this Act are hereby repealed to the extent specified in the third column of that Schedule. (Sale of Goods Act 1979) Consistent with the goals of the present study we feel the need to provide a more detailed description of the verb category of mood . Huddleston (1984:164) takes the view that “there is no inflectional system of mood in Modern English”. Traditionally the term mood is applied to grammatical systems of the verb or verb phrase whose terms are differentiated semantically primarily in the contrast between factual assertion and various kinds of non-factuality and/or non-assertion. It expresses contrasts among indicative , imperative and subjunctive . According to certain grammarians interrogative too falls under this definition. We use the term mood in the traditional understanding. In our view, it is one of the verb categories, and it signals a sentence type. It is used with reference to indicative , imperative, subjunctive, and interrogative. General definition can be given as follows: Indicative is the unmarked term in the system that is characteristically used in factual assertions. The imperative is used for the verb form figuring in requests and commands. Subjunctive is used for the verb form associated with subordinate clauses involving non- factuality. Owing to the frequent occurrence of verbs in the indicative mood we do not present the examples of them. They are provided in parts on tense and voice. Linguists dealing with legal speech acts do not mention the usage of the imperative . Kurzon (1986: 10) considers be it enacted in the enacting formula (still valid in British Finance Act) the passive imperative and also admits the existence of passive imperative in legal documents by saying “The only case of a legal document in which a performative occurs in the form of a passive imperative seems to be probate declarations: ‘be it known that’…”

55 (see example the below). Kurzon (ibid) does not mention the occurrence of the active imperative in legal documents. However, analysing legal documents we came across the expression KNOW (YE) ALL MEN BY THESE PRESENTS, which means be informed by this document and is often used to emphasise a statement. In our view it is clear evidence of presence of the active imperative in legal documents, and its purpose is to express the act of assertion. Passive voice Be it enacted occurs in both enacting formulas, the old one (still used in the Finance Act) as well as the new enacting formula. Most Gracious Sovereign, We, Your Majesty’s most dutiful and loyal subjects, the Commons of the United Kingdom in Parliament assembled, towards raising the necessary supplies to defray Your Majesty’s public expenses, and making an addition to the public revenue, have freely and voluntarily resolved to give and grant unto Your Majesty the several duties hereinafter mentioned; and do therefore most humbly beseech Your Majesty that it may be enacted, and be it enacted , etc. BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:- BE IT KNOWN , that (the name of a person), (hereinafter referred to as ‘Releaser’), for and in consideration of the sum of … and other valuable consideration received from or on behalf of (the name of a person), (hereinafter referred to as ‘Releasee’), the receipt of which is hereby acknowledged… Active voice KNOW YE ALL MEN BY THESE PRESENTS , that, I, …the name of the person….., of …the residence…., for and in consideration of payment of the sum of …, the receipt of which is hereby acknowledged, do hereby , grant , bargain , sell and convey to ….., and his heirs, executors, administrators, successors and assigns the following property Analysing the texts we came across examples containing the subjunctive . The subjunctive mood is a carrier of formality and archaism. We agree with Rodney Huddleston (1988: 350) who says: “we have to say that the correlation between the syntactic (form) and semantic (function) categories is significantly less direct with subordinate clauses than with main clauses. The uttering of a subordinate clause does not usually constitute an illocutionary act; it is only in uttering the main clause of which it is part that such an act would be performed”. We consider the following examples those of mandative subjunctive. The Court may order that a witness or an expert be heard by the judicial authority of his place of permanent residence. I direct that my executor pay all my funeral expenses, all state and federal estate, inheritance and succession taxes, administration costs and all my debts subject to statute of limitations except mortgage notes secured by real estate, as soon as practical. It seems that defining of the subjunctive mood causes problems. According to Kurzon (1986: 10) be it enacted as well as be it enacted that in the enacting formulas are the examples of the passive imperative. Quirk, Greenbaum, Leech, and Svartvik in A Comprehensive Grammar of the English Language (1991: 156) present the following example of formulaic subjunctive: Be it noted that this offer was made in good faith . Thus, according to them, be it enacted and be it known should be considered the formulaic subjunctive. In Maley’s understanding (1994: 20) “ be it enacted is the remnant of old jussive subjunctive”. He

56 justifies it by saying, “The archaic jussive subjunctive form expresses clearly the relationship between the text and the source of the discourse – it is expressed as if it were a perpetual, speaking command from the sovereign power to its subjects.” Our viewpoint takes into consideration the present form of the above-mentioned examples. Accordingly, we favour the Kurzon’s opinion. Most Gracious Sovereign, We, Your Majesty’s most dutiful and loyal subjects, the Commons of the United Kingdom in Parliament assembled, towards raising the necessary supplies to defray Your Majesty’s public expenses, and making an addition to the public revenue, have freely and voluntarily resolved to give and grant unto Your Majesty the several duties hereinafter mentioned; and do therefore most humbly beseech Your Majesty that it may be enacted , and be it enacted , etc. There is an obvious close relationship between the grammatical system of mood, sentence types and functions (speech acts) as it is illustrated in the table below: declarative, interrogative, imperative, and exclamative . They are also called syntactic categories. As we have said the mood is a category of the verb and its identification is the matter of morphology. Also, the sentence type is a matter of grammar, specifically of syntax. This means that sentences differ from each other according to certain features of their syntactic structure (the position of the subject, the form of verb phrase, absence or presence of other sentence elements). The speech act identification cannot be realised within a single clause, it is almost always a matter of structure, meaning, intonation and context. It is the context that defines the type of a speech act. It is necessary to pinpoint certain correspondence between a morphological category of mood and a syntactic sentence typology. The correlation is as follows:

MOOD SENTENCE TYPE FUNCTION Indicative declarative sentence Statement Interrogative Interrogative question, request Imperative Imperative Directives Subjunctive Declarative wish, order We analysed legal language acts in terms of correlation between the sentence type/mood and function, presence or absence of a performative/ and exerted illocutionary force. The results of the analysis prove our expectations: almost exclusive occurrence of declarative sentences. Except for a few examples of legal language acts carried out by the imperative sentences the declarative sentences are solely used in the examined type texts to perform the identified legal language acts. “Whenever there is a direct relationship between a structure (declarative, interrogative, imperative) and a function (statement, question, request), we have a direct speech act ” (Yule, 1996: 54,55). Hurford and Heasley (1996: 259) use the term “direct and indirect illocution”. They define the direct illocution of an utterance as follows “it is the illocution most directly indicated by a literal reading of the grammatical form and vocabulary of the sentence uttered” (ibid). For example, if an order is expressed by an imperative sentence or when a statement is made by a declarative, a direct speech act is performed. Yule (1996: 55) points out, “whenever there is an indirect relationship between a structure and a function, we have an indirect speech act ”. When a declarative is used to make command or request, it is an indirect speech act. Hurford and Heasley (1996: 269) see one of the reasons for performing indirect speech acts in the following: “the gap between sentence meaning and utterance meaning is least noticeable when speakers are being direct (i.e., not being ironic, or diplomatic, or polite). Politeness is one of the main motivations for using an indirect illocution in preference to a direct one.” Speaking about directives Hatch

57 (1992: 122) says that “some researchers believe the greater the risk of refusal, the more indirect the directive will be”. Indubitably, tradition, convention, etc. influence the frequency of indirect legal language acts. James (1992: 120) mentions that “whether or not we are explicit depends on how precise we need to be, which depends on the setting of the communication: a legal contract or an international treaty has to be unambiguous and will therefore be maximally explicit”. The utterance that does not contain a performative verb expresses a certain kind of speech act implicitly. The language of the law is rich in implicit speech acts. In bills and acts as well as in contracts, agreements and other legal documents we found implicit speech acts of promise, order, prohibition, permission, etc. expressed by modal verbs. The following sentence does not contain a performative verb promise but under appropriate circumstances the sentence expresses an implicit legal language act of promise performed by the Lessor through the modal verb will (not) . The Lessor during the lease period of 1 year will not increase the rent as agreed upon. Prohibition is expressed most frequently by the modal shall not as it can be seen in the following example. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal; or unenforceable provision had never been contained herein. Explicit speech acts are acts where the message transmitted is clearly stated or shown. It is fully expressed, unambiguous, and definite. It does not involve any guesswork. Yule (1996: 129) uses the term “explicit performative” for a speech act containing a performative verb. By the use of a performative verb the illocutionary force is made explicit. Explicit speech acts are marked by a performative verb. Yule in Pragmatics (1996: 49) presents the term “the illocutionary force indicating device” (IFID). According to him it is “an expression for a verb that explicitly names the illocutionary act being performed. Such a verb can be called a performative verb.” Kempson (1992: 59) uses the term “explicit illocutionary force indicator”. Analysing legal texts we found out that they are a rich source of performative verbs that are the carriers of explicit illocutionary force. In Yule’s terminology all they are IFIDs. We also made an attempt to classify legal language acts. They are analysed in terms of: I correlation between the sentence type/mood and function II presence or absence of a performative/modal verb III exerted illocutionary force

I Correlation between the sentence type/mood and function (direct – indirect) We based the division on the relation between a structure and a function. Whenever there is a direct relationship between a structure (declarative, interrogative, and imperative) and a function (statement, question, and request), we speak of a direct speech act (Yule, 1996: 54,55). Whenever there is an indirect relationship between a structure and a function, an indirect speech act is the case (ibid: 55). Except for a few examples of legal language acts carried out by the imperative sentences almost exclusive occurrence of declarative sentences/indicative mood is observed in both types of the examined texts . II Presence or absence of a performative/modal verb (explicit – implicit)

58 The type of a verb allows us to distinguish between explicit and implicit acts, and ultimately arrive at the categories below. a/ a performative verb explicit (legal language acts) Citizenship of the Union is hereby established . (EC Legislation) b/ a modal verb (implicit legal language acts) Licensee shall hold such Confidential Information in strict confidence… Implicit legal language acts expressed by modal verbs may, shall, must occur most frequently. May expresses permission and shall some obligation, duty, task. Kurzon (1986: 22) points out, “both shall and may imply some authority – the speaker – that authorises a body to do something as a requirement (or duty) or to do it at its discretion”. Shall is used to perform the act of ordering and the negative modal verb shall not carries out the illocutionary force of prohibition . c/ a modal-performative-verb combination During our analysis many sentences containing combinations of a modal verb and a performative verb were found. Such a combination is not generally recognised by linguists as a typical performative utterance but we dare say that some modal-and-performative-verb combinations may also have the status of legal language acts. The following example contains the combination of shall (which expresses obligation) and the performative verb permit. We think that such a legal language act has the status of the act of permission. The modal shall here manifests future necessity of the act of permission. To assist Europay and MasterCard in the protection of their proprietary rights, Licensee shall permit and shall cause the Sublicensee to permit representatives of Europay and MasterCard or its agents to inspect the Software being used at all mutually agreed upon times during normal working hours. The two following examples contain the modal verb shall and the performative verb abolish. It appears that in such combinations the performative verb exerts more strength and is more capable of gaining a desired result. Customs duties on imports in force between Member States shall be progressively abolished by them during the transitional period. (EC Legislation) The quotas shall be abolished by the end of the transitional period at the latest. (EC Legislation) In the following example the modal verb shall expresses that the act of disclaiming cannot be avoided or prevented from happening. It shows certain ‘inevitability’. The Sublicensee shall disclaim any right, title, or interest in the Software… d/ a performative-performative-verb combination We also found many examples of combinations of a performative verb and a performative verb. The Lessee agrees to allow the Lessor or his agent to inspect the tenement or show it to potential future tenants on request, subject to 24 hours notice. The Tenant undertakes to allow the Lessor to inspect the premises whenever the Lessor deems necessary. In the two examples above two performative verbs appear. Permission is made by the performative verb allow . The performative verbs ( agree, undertake ) are used to make

59 permission officially and fully stated or announced to the public. The acts of agreeing and undertaking are performed in order to emphasise the act of permitting. If the Lessee agrees and the Tenant undertakes to allow somebody to do something, it means that they allow somebody to do something. In spite of the fact that the performative verb allow is in the (the form which is not generally considered to be the form of the performative verb in a performative utterance), we dare say that the intended act of permitting is performed. Each Member State undertakes to authorise , in the currency of the Member States in which the creditor or the beneficiary resides, any payments connected with the movement of goods, services and capital, and any transfers of capital and earnings, to the extent that the movement of goods, services, capital and persons between Member States has been liberalised pursuant to this Treaty. (EC Legislation) The Member States declare their readiness to reduce customs duties against the other Member States more rapidly than is provided in Article 14 if their general economic situation and the situation of the economic sector concerned so permit. (EC Legislation) In both sentences, in our view, two acts (promise & authorisation and declaring & reducing) are being performed. Both performative verbs, in each of the presented sentences, seem to exert almost the same illocutionary force. III Exerted illocutionary force The research material provides examples of four types of acts. (We based our analysis on the division of speech acts made by Searle.) Our analysis proves the prevailing occurrence of directives and commissives. This can be supported by Hurford and Heasley’s claim that “Society, as we know, could not exist without the availability of a range of directive and commissive acts” (1996: 264). Expressives, the fifth type, is not further specified owing to its absence in the analysed material. The following table presents the classification of speech acts by Austin and Searle and enlists speech and/or language acts which were identified in the examined texts. Some acts are written in the boldface type to indicate major acts recognised in the analysed material.

AUSTIN SEARLE ASSORTED EXAMPLES OF EACH TYPE Expositives Representatives appointing , approving, asserting , claiming, confirming , denying , stating, suggesting, Commissives Commissives accepting, agreeing, binding oneself, committing oneself, giving one’s word/power, guaranteeing, offering, pledging, promising , undertaking , swearing, volunteering, vowing Behabitives Expressives not further specified due to its absence in the analysed material Exercitives Directives admonishing, advising annulling , appealing, asking, begging, bidding, commanding, counselling, demanding, directing, discharging , dismissing, enjoining, exhorting, forbidding, inviting, imploring, insisting, instructing, inviting, ordering , permitting , pleading, prohibition, refraining from, requesting , requiring, restriction , suggesting, urging, warning Verdictives Declarations blessing,baptising, marrying, naming,nominating declaring,resigning

Below we present the descriptions of the most frequent speech acts discovered in our corpus. A commissive is a speech act “which essentially involves the speaker committing himself to behave in some required way” (Hurford and Heasley, 1996: 262). According to Yule (1996: 128) a commissive is a speech act in which the speaker commits himself to something, e.g. the acts of promise and commitment.

60 A directive is a speech act “which essentially involves the speaker trying to get the hearer to behave in some required way” (ibid: 262). According to Yule (1996: 129) a directive is a speech act used to get someone else to do something. In the case of directives the performer of a required action is the target addressee. A general nature of a directive is to “identify some future action or behaviour on the part of the addressee(s) (including refraining from doing something) and to bring about that action or behaviour” (Huddleston, 1984: 359). Hutch (1992: 123) says, “… the variation in directive forms within a language must be sensitive to social constraints”. Goffman (1976: 267) for social constraints uses the term ‘ritual’ constraints. We believe that traditions and legal conventions have significant influence on the way of performing legal language acts. When an order or request is made in legal writing, imperatives are less polite than declaratives. The obligatory character of legal texts and their discourse requirements may explain the absence of the imperative in the examined texts. Directives in the analysed corpus are expressed by a declarative sentence. Interrogatives are completely absent from the texts of this type. NOTE: The terms a directive act and a direct act are not identical. Here the term directive denotes the kind of a legal language act, i.e. getting someone to do something. The term direct describes the way of performing an act. The opposite is an indirect act. The results of our analysis prove that legal texts are a fruitful soil for performative utterances. The analysis also proves that many performative utterances do not occur in the standardised structure, such as I pronounce you man and wife. Naturally, there are some borderline circumstances in which it is difficult to define whether a given utterance is performative or is not performative. We looked at a certain range of linguistic tools by means of what the effectiveness of law is achieved, “A major task for the theory of speech acts is to account for how speakers can succeed in what they do despite the various ways in which a linguistic meaning underdetermines use”(Bach). In everyday communication, addressers may do almost anything with the meanings and forms of the words they use in order to achieve their intention under the context conditions. They have almost unlimited devices for expressing their intentions to the extent of being certain that the meaning and the form they use will be recognized by addressees. In the legal setting the creative space of addressers is considerably restricted by conventions, traditions and expectations of addressees. It is often the matter of convention “that utterance in a certain form counts as the performance of an act of a certain sort.” (Bach, http://userwww.sfsu.edu/ ~kbach/spchacts. html ) We believe that even though there is (a) certain predetermined model/s of a legal language act structure, there is still some manoeuvring room that is provided for the addresser’s disposal.

NOTE: All the claims presented here are made with reference to the analysed legal texts.

Bibliography ALLAN: http://www.artsmonash.edu.au/ling/speechactsallan. shmtl AUSTIN, J. L. 1962. How to Do Things with Words. Cambridge: Harvard University Press. BACH, K. last visited 2000. Routledge Encyclopedia of Philosophy Entry. http://www.sfsu.edu/~kbach/spchacts.html BLUM-KULKA, S.: The Study of Translation in View of New Developments in Discourse Analysis: The Problem of Indirect Speech Act. In: Poetics Today, 1981.- Vol.2:4.- 11.- s. 89-95 BHATIA, V. K.: Analysing Genre: Language Use in Professional Settings. New York: Longman Publishing 1994a.

61 BHATIA, V. K.: Cognitive Structuring in Legislative Provisions. In: John Gibbons, ed., Language and the Law. New York: Longman Group UK Limited 1994b. COHEN, A.D. 1997. Speech acts. In: Sandra L. Mc Kay and Nancy H. Hornberger, eds., Sociolinguistics and Language Teaching. Cambridge: Cambridge University Press. CRYSTAL, D., Davy, D.: Investigating English Style. New York: Longman Group Ltd 1986 DOLNÍK, J., BAJZÍKOVÁ, E. 1998.Textová lingvistika. Bratislava: STIMUL - Centrum informatiky a vzdelávania FIF UK ISBN 80-85697-78-5 GIBBONS, J. 1994. Introduction: language constructing law. In: John Gibbons, ed., Language and the Law. New York: Longman Group UK Limited. GREENBAUM, S., QUIRK, R. 1995. A Student’s Grammar of the English Language. Harlow, Essex: Longman HALLIDAY, M. A. K. 1985. Introduction to Functional Grammar. London: Edward Arnold. HATCH, E. 1992. Discourse and Language Education. Cambridge: Cambridge University Press. HORECKÝ, J. 2000. O jazyku a štýle kriticky aj prakticky. Prešov: Náuka. HURFORD, J., HEASLEY, B. 1996. Semantics: A Coursebook. Cambridge: Cambridge University Press. JACKSON, B. S.: Semiotics and Legal Theory. London: Routledge & Kegan Paul plc.1985 KA ČMÁROVÁ, Alena. 2002. Some Remarks on the Evolution of Pragmatics. In: Studia Philologica, Annus IX, FHPV PU Prešov 2002, s. 31-36 KEMPSON, R. M. 1992. Semantic Theory. Cambridge: Cambridge University Press. KURZON, D. 1986. It is Hereby Performed: Explorations in Legal Speech Acts Philadelphia, PA: John Benjamins. LOCK, G. 1997. Functional : An Introduction for second language teachers. Cambridge: Cambridge University Press. Longman Dictionary of Applied Linguistics. 1985. New York: Longman. MALEY, Y. : The language of the law. In: John Gibbons, ed., Language and the Law. New York: Longman Group UK Limited 1994 MELINKOFF, D. 1963. The language of the Law. Boston: Little Brown and Company. Library of Congress Catalogue Card No. 63-17574 NIŽNÍKOVÁ, J.1994. Zo slovenskej skladby. Prešov: FF Univerzita P. J. Šafárika. QUIRK, R., GREENBAUM, S., LEECH, G., SVARTVIK, J. 1991. A Comprehensive Grammar of the English Language. New York: Longman. RÁZUSOVÁ, Magdaléna. 2003.Úvod k porovnávacej analýze mediálneho dialógu v anglickom a slovenskom jazyku. In: zborník Porovnávacia analýza vybraných diskurzov v slovenskom a anglickom jazyku vydaný v rámci projektu VEGA č. 1/9346/02. RICHARDS J., PLATT J., WEBER, H. 1992. Longman Dictionary of Applied Linguistics. Harlow, England: Longman.

62 SEARLE, J. R. 1969. Speech acts: An essay in the philosophy of language. Cambridge: Cambridge University Press. ISBN 052 1071 844 SPERBER, D., WILSON, D. 1986. Relevance, Communication and Cognition. Cambridge: Harward University Press. ISBN 0631198784 TRUDGILL, P. 1992. Introducing Language and Society. London: Penguin books Ltd YULE, G.: Pragmatics. Oxford: Oxford University Press 1996 WIDDOWSON, H.G. 1996. Linguistics. Oxford: OUP.

PRÁVNE TEXTY AKO TEXTY PRODUKTÍVNO-AKTÍVNE

Resumé

Jedným z teoretických východísk prezentovanej analýzy právnych textov je teória komunika čných (re čových) aktov sformulovaná J. L. Austinom a rozvinutá J. Searlom. Komunika čný akt chápeme ako funk čnú jednotku v komunikácii. Z komponentov Austinovej koncepcie je pre náš ú čel najdôležitejšia iloku čná sila výpovede, ktorá zhruba zodpovedá pragmatickému významu. Pre pochopenie úlohy komunika čného aktu v právnych textoch je pre našu prácu nevyhnutný rámec pragmatiky, ke ďže práve v nej sa zdôraz ňujú záujmy a postoje ú častníkov komunikácie a ú čel výpovede. Hlavnou úlohou výskumu je identifikovať prostriedky, ktoré sa používajú na realizáciu jednotlivých komunika čných aktov. Sústredili sme sa preto napodrobnú analýzu iloku čnej sily komunika čného aktu v prostredí práva, ktorá je vyjadrená performatívnym slovesom alebo modálnym slovesom. Článok ponúka detailnú analýzu performatívneho slovesa na základe jeho jednotlivých charakteristík: slovesného času, slovesného rodu, slovesného spôsobu a sústre ďuje sa tiež na tie morfologické tvary performatívneho slovesa, ktoré sa naj častejšie vyskytujú v skúmaných textoch.

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