Transcript Diapositiva 1

The law is a profession of
words…
• The use of language is crucial to any legal system — not
only in the same way that it is crucial to politics in general,
but in the special respect that lawmakers typically use
language to make the law, and courts typically use language
to state their grounds of decision. So philosophers of law
need a good philosophical understanding of the meaning
and use of language. But philosophers of law have also
tried to draw on insights* from philosophy of language to
deal with other problems they face. Philosophy of law
shares a tension that affects philosophy of mind and
metaphysics, and perhaps all the central areas of
philosophy: it is often unclear which problems are
problems of language, and which are not.
• *insight: idea, intuizione
• Two areas of philosophical interest in law and
language result.
• First is the interest in the use of language in
law.
• Second is the interest in using philosophy of
language to address problems of the nature of
law.
• Should we try to account for a law as an assemblage of
signs? The objections are insurmountable. Law (in the
sense that is relevant here) is the systematic regulation of
the life of a community by standards treated as binding the
members of the community and its institutions. A law is a
standard that is part of such a systematic form of
regulation. Many such standards have no canonical
linguistic formulation (that is, no form of words which,
according to law, determines the content of the standard).
Lawyers in common law systems are familiar with such
norms: murder may be a criminal offence not because any
person or institution uttered a ruling that it should be so,
but because the institutions of the legal system customarily
treat murder as an offence.
• There is another conclusive reason not to say that a law is
an assemblage of signs. When a lawmaking authority does
use language to make law, the resulting law is not an
assemblage of signs. The reason for that conclusion is a
general fact about communication: a communicative act is
the use of an assemblage of signs to some effect. When an
authority uses words to make law (as when a legislature
uses a lawful process to pass an enactment that is within its
powers), the law that it makes is a standard (or standards)
whose existence and content are determined by the legal
effect that the law ascribes to that use of words. When a
law is made by the use of signs, that law is a standard for
conduct, and not an assemblage of signs.
Normativity of law
• Legal philosophers have tried to explain the
normativity of law — the fact that the law of a
community is, or presents itself as, a guide to
the conduct of members of a community. One
easy way to express this abstract feature of
law is by pointing out that the law can be
stated by making normative statements (i.e.
statements that use expressions like
‘obligation’, ‘right’, ‘must’, ‘may’).
• Language and law are inextricably linked in many
ways: rules are expressed, understood, and
interpreted in language; legislation too is a special
form of expression, as is a judge’s opinion. We
might think about :
• how does the language of rights or the language
of power harness*, constrain and change our
perceptions of law?
• How language works to shape and enrich our
understanding of law (for example, semantics,
hermeneutics, linguistics, logic, semiotics,
psycholinguistics, syntax, pragmatics, each reveal
deeper ideas)?
• Analytic techniques from many other disciplines like
Literature, Philosophy, Neuroscience, Economics,
Geography, Anthropology and Psychology (to name
but a few) each reveal new insights into the way we
perceive language and law in general, how we work
with language in law and how we might understand
the place of language in specific areas of law,
including Contract or International Law for example.
The relationship between law and language extends
to broader notions of language as communication
too, like the crucial role of silence and non- verbal
communication. In essence, the relationship
between law and language is varied and complex.
• *to harness: sfruttare o imbracatura
BUT:
• Investigation into law and language is quite
extensive, emanating not only from the field
of linguistics, but also from other social
sciences.
legalese
• The mention of legal language tends to conjure up* in the
mind of the layperson* ‘legalese’ – that often
incomprehensible verbiage* found in legal documents as
well as an arcane jargon used among attorneys. To
elucidate how this ‘special dialect’ came about and how it
differs from ‘ordinary English’, researchers have turned to
the language of the law as a linguistic phenomenon in its
own right, tracing its evolution and noting the peculiarities
of its vocabulary and sentence structure
• *to conjure up: fare apparire
• To conjure: far apparire, evocare
• *layperson: laico (insenso religioso) o inesperto (in senso
generale)
• *verbiage: verbosità, lessico
Several words to refer to
“lawyers”…
• Anna: So what are you planning to do after your degree?
• Daniel: Well, I’m planning to become a barrister, because I’d
really like to plead cases in court. I liked those American films
when the handsome young attorney wins the case against the
big corporation…And what about you?
• Anna: Actually, I’d like to work for a big corporation and
advise them on their legal affairs as in-house counsel. And
What about Jacob?
• Daniel: He wants to become a solicitor. He is not interested in
pleading cases in court. He’d rather do research and give legal
advice.
The legal profession (1)
• Lawyers in England are divided into Barristers
and Solicitors. Barristers usually spend more
time in court.
• The usual procedure for a client is to instruct a
solicitor who would then engage a barrister on
their behalf.
• But: this division is now breaking down
(2)
• Much of the solicitors’ time is devoted to conveyancing
and drawing up wills and contracts. Solicitors can form
partenships with other solicitors (barristers may not do
this)
• The majority of barristers work in London, although some
barristers have sets of chambers in the larger provincial
towns such as Manchester and Birmingham.
• An established barrister will often specialise in an area of
law.
•
Conveyancing: is the act of transferring the legal
title in a property from one person to another
The attorney
The attorney general, or attorney-general
(procuratore generale), is the main legal
advisor to the government. In the common
law tradition, anyone who represents the
state, especially in criminal prosecutions, is
such an attorney.
• So a good translation of “attorney” would be
“procuratore”
In-house counsel
• As in-house Counsel you will represent a
company in litigation matters in court. The
duties will include conducting necessary
discovery,trials, depositions, mediations, etc…
1)
2)
3)
4)
5)
6)
7)
8)
VOCABULARY:
DRAFTING LEGAL DOCUMENTS: redigere/
stilare documenti legali
CONVEYANCING: passaggio di proprietà
TRIAL: processo
take on advocacy:
appoggiare/sostenere/rappresentare
work on behalf of clients: lavorare a nome di
clienti /per conto di
Practise is a verb BUT Practice is a noun
MP (s): Member (s) of Parliament
MEP(S): Member(s) of European Parliament
Plain English
• In an endeavor to counteract the negative
effects of legalese, there has developed a
trend toward ‘plain English’. It began as a
consumer movement to simplify the language
of the law so that the public can understand
documents that they may be required to sign,
such as apartment leases*, insurance policies
• *leases: locazioni
• What exactly was causing the
incomprehensibility? The difficulty was due,
not so much to vocabulary items, but mostly
to particular types of grammatical
constructions, such as the occurrence of
multiple negatives and the excessive use of
passive sentences.
• Nor should attorneys believe themselves to be
immune from the plain English movement.
They too must rethink how they write.
• Richard Wydick, a professor of law and author
of a popular manual on legal writing,
maintains that the best legal English is plain
English, and he condemns that abstruse style
so typical of many legal practitioners.
• A word may have more than one meaning or dictionary
definition, and if there is no context to suggest which
of the possible senses is intended then the word will be
ambiguous.
• Example: a contract for the sale of chickens. The buyer
contends that a ‘chicken’ is a young bird suitable for
broiling or frying, but definitely not a stewing fowl*.
The seller maintains that a ‘chicken’ is any suitable
member of the species regardless of age. Which
definition will the court embrace?
• *stewing. Stufato
• *fowl: pollame
Legalese: some examples…
•
Here are some examples of common legalese terms with translations:
To execute a document means to sign it. Of course, execution has a different meaning if
you’re on Death Row.
Herein (più avanti) is a shorthand term for “in this here document” and therein (ivi
contenuto) means “in that there document.” So “Section 6 herein” refers to the document
you are reading at that moment, and “therein” is referring to some other document.
If you indemnify (indennizzare, risarcire) me, it means you’re going to pay if I have to pay.
A sentence with liable (responsabile) or liability means that if something bad happens, it’s
predetermined to be somebody’s fault, and they will have to pay for it.
A power of attorney is not a person. You don’t refer to me as your power of attorney. It is a
right that you give to someone to act on your behalf, for example, to sign a document or to
make a decision. It gets a bit confusing because the document that you sign to empower
them is usually called a Power of Attorney.
CASE LAW:
Case law comes from the decisions made by
judges in the cases before them. In deciding a
case we may finf two basic task:
1)Establishing what the facts are, meaning what
actually happened.
2)How the law applies to those facts.
Ratio decidendi/ obiter dicta
• The explanation of the legal principles on
which the decidon is made is called “ratio
decidendi” (English: reason for deciding)
• All parts of the judgement which do not form
part of the “ratio deicidendi2 of the case are
called “obiter facta” (English: things said by
the way). These are often discussions of
hypothetical situations but none of the obiter
dicta forms part of the case law.
Common Law:
• Before the Norman Conquest in 1066 different
areas of England were governed by different
systems of law. When William the Conqueror
gained the English throne in 1066, he established
a strong central government abd began to
standardize the law.
• Represenatives of the King were sent out to the
countryside to check the local administartion,
and were given the job of adudicating in local
disputes, according to local law.
When the principle of “stare decisis”
grew up…
• When these itinerant justices returned to
Westminster , they were able to discuss the
different customs they met in different parts
of the country and by a process of selection,
rejecting unreasonable ones and accepting
those that seemed more rational, they formed
a consistent body of rules (the “stare decisis”)
making the law more predictable.
A common law (1250)
• The result of such a situation was that by about
1250 a common law had been produced and it
ruled the whole country. It contained many of
what are now basic points of English law (the fact
that a murder is a crime for example).
• The English common law system was exported
around the world wherever British influence
dominated during the colonial period (including
USA and Commonwealth countries)
Equity or not?
• The common law became very rigid and it was not
always an adequate solution to every problem. When
people were unable to seek redress for wrongs through
the c.law courts they petitioned the king. These
petitions were passed to the Chancellor, the king’s
chief minister. Litigants appeared before the
Chancellor, who would question them, and then deliver
a verdict based on his own moral view of the question.
The Court, relying entirely on the Chancellor’s view of
right and wrong , it could enforce rights not recognized
by the common law, which was failing to adapt to new
circumstances. This type of justice came to be known
as equity.
And now?
• By the nineteenth century equity had become
a body of law with established cases, rather
than an arbitrary exercise of conscience. Today
equity is still a separate body of rules, distinct
from the common law rules, but it is applied
in the same courts as the common law. Where
there is a conflict between the two, equity
prevails.
Advantages of binding precedent:
• Certainty: this helps people plan their affairs
• Detailed practical rules: case law is a response to real
situations, as opposed to statutes which may be more based
on theory and logic. Case law shows the detailed application
of the law to various circumstances.
Disadvantages of binding
precedent (1):
• Complexity and volume: there are hundreds of
thousands of decided cases. Judgments themselves
are long and the ratio decidendi of a case may be
buried in a sea of irrelevant material.
• Rigidity: the rules of judicial precedent mean that
judges should follow a binding precedent even where
they think it is a bad law, or inappropriate. This can
mean that bad judicial decisions are perpetuated for
a long time before they come before a court high
enough to have the power to overrule them.
(2)
• Dependence on chance: case law changes only in
response to those cases brought before it, so
important changes may not be made unless
someone has the money and determination to push
a case far enough through the appeal system to
allow a new precedent to be created.
• Retrospective effect: if a case changes the law, the
parties concerned in that case could not have known
what the law was before they acted.