Dyskurs prawny. Języki, teksty i konteksty

Abstract

This work presents the results of research studies on the different aspects of legal communication and law-related discourses, especially those functioning in the Polish society, also in contact with other languages used by national communities. Each of its four main parts contains the chapters referring to languages, styles, concepts or texts serving the sphere of legal communication perceived and analysed here in the vast context, such as: historical, political, socio-cultural one, etc. The first chapter LANGUAGES, STYLES AND DISCOURSES IN THE SPHERE OF LAW AND ADMINISTRATION (pp. 8- 15) discusses the components of the discourse serving the sphere of making, applying and interpreting law. Four functional types are identified: legislative, judicial, administrative and lawrelated discourses, which play an interdiscursive role, including other variants in different areas of the world of discourses, such as: media, scientific, literary ones, etc. Individual types are differentiated in terms of language as well as style and grammar. The integrative (intradiscursive) role within the analysed constellation is played by thematically diverse discursive fields and formations, that is systems of social institutions, theories and practices that condition the shape of discourses in certain historical, socio-political and cultural conditions. The second study in the first part of the present work LEGAL AND JUDICIAL COMMUNICATION FROM THE PERSPECTIVE OF RHETO RIC, STYLISTICS AND TEXTOLOGY (pp. 16-32) provides a synthetic overview of the modern research approaches to the sphere of legal and judicial communication, with particular attention given to disciplines such as rhetoric, stylistics and linguistic textology. This overview is aimed at presenting a certain tradition of research on the style of utterances performed in the sphere of legal and judicial communication, on the one hand, and at indicating deficiencies within the discussed issues and description methods employed, on the other. The author emphasises the significance of the discussion on the so-called judicial genre in the classical rhetoric and the development - on the ground of Slavic stylistics - of the concept of social functional styles and, in relation to this, the distinction of the so-called administrative style, which includes the legal discourse. She also appreciates the pragmatic and communicative breakthrough in linguistics under the influence of the theory of speech acts by J. L. Austin and J. R. Searle. The combination of research on speech acts with the analysis of the genre and style diversification of utterance seems particularly fruitful when referred to the legal and judicial discourse. The aim of the researcher is also to outline the prospects for further research which might be inspired by achievements on the ground of linguistic genology and new stylistics which take advantage primarily of the pragmalinguistic and cognitive inspirations. The author also points to research areas in which interdisciplinary cooperation between linguists and law theoreticians would be desired. The study ON MODALITY AND NEGATION IN VERBAL DIRECTIVES - LOGICAL AND PRAGMATIC ASPECTS OF SEMANTIC ANALYSIS (pp. 34-44) opens the second part concerning the interpretation of the legal utterances. The subject of the analysis are the verbal directives which express order, prohibition or permission - characteristic especially for the official and legal sphere of communication. The Author examines logical and pragmatic consequences of using negative deontic predicates (such as: may, should, have to, permit, order, forbid etc.) in statements of the kind, at the same time pointing to certain difficulties in interpreting their meaning. The study also touches upon general interpretation problems connected with the correlation of modality and negation as well as with the contextual determination of the meaning of verbal interactions. The problems prove the semantic non-equivalence of the expressions regarded as synonymous from the point of view of logics (e.g. to permit - not to prohibit) and, on the other hand, the existence of pragmatic implications between those treated as logically contradictory (e.g. to order - to permU). The subject matter of the analysis provided in the next chapter: ACTS OF SLANDER - THE PROBLEM OF A LINGUISTIC AND JURIDICAL INTERPRETATlON OF A STATEMENT (pp. 45-59) is the meaning and pragmatics of speech acts qualified in Polish common parlance as obraza, zniewaga, zniesławienie etc. (offence, affront, insult, slander ... ). These names designate actions which are socially unacceptable and classified as transgressions from the point of view of Polish penal law. The Author analyses the difficulties linguists face when defining adecquate notions existing in common knowledge of the speakers of Polish. Moreover, the paper emphasizes the problem revealed to jurists seeking a. ground for attributing bad intentions to authors of slanders called "indirect speech acts", i.e. realized without explicit performatives. The comparison of linguistic and judicial interpretation of these acts intends to indicate differences between systems of evaluating special phenomena: one which is generally acceptable (relating to customs) and the other preferred by lawyers. The consequences of such disagreement are reflected in the appreciation of verbal behaviours important from the social and moral point of view. One of these effects is "juridisation", i.e. an influence of juridical and judicial actions and opinions on ideas and activities of all members of the community. The subject of the study closing the second part of this work: THE DIRECTIVE AND PERSUASWE STYLE OF A LEGISLATIVE SPEECH ACT AND THE TRANSFORMATIONS THERE OF (ILLUSTRATED WITH THE POLlSH LEGAL DISCOURSE) (pp. 60-74) is the characteristics of the genre pattern of the legislative speech act as well as the indication of reasons and consequences of its style-related transformations: beginning with a directive with elements of persuasion, up to a declaration (a steadfast statement). The examples of speech acts derived from the Polish legislature illustrate the transformation of communicative conventions against the European legal culture. The conventions of the genre- and stylebased shaping of legal speech acts go beyond the limits imposed by individual national cultures and ethnic languages. The shaping of the legislative speech act in Polish in terms of genre and style was particularly affected in the Middle Ages by the Germanic stylistics of an ortyl (that is a court verdict in Magdeburg), which affected the form of the speech act composed usually of two main constituents: the description of the case and the verdict. In the legislative speech act, the description of a specific act corresponded to the indication of circumstances being the so-called hypothesis of the legal norm, whereas the court verdict assumed the nature of a directive for the generalised addressee. The directive speech act tended to be realised within a metatextual (performative) framework, often preceded by a justification (providing a reason) of the valid legislative act. The persuasion component was part of the legal directive and as late as XVIII century it was significant in the legislative speech act macro-structure. Since XIX century the principle "motiva evitentur" has been strictly employed. The omission of any justifications for the provided legal provisions results in law losing its discursive nature, assuming the form of a steadfast speech act which leaves no room for discussion. The Author ponders whether the antipersuasive restriction (the rule stipulating that "the legislator is not to explain its motives") stands in certain contradiction to the general principles of a democratic state whose citizens have the right to acquire information on the motives of any and all decisions taken by the authorities. The third part of the book contains the studies concerning the relationships between the Polish legal language or law-related discourses and the other languages used in the past and at present. It begins with the study referring to the history: LANGUAGES OF THE LAW IN THE POLISH-LITHUANIAN COMMONWEALTH (FROM XVI TO XVIII CENTURY) FROM THE PERSPECTIVE OF INTERCULTURAL COMMUNICATION AND TRANSLATION PRACTICES (pp.77-90). In the period from XVI to XVIII century Poland (the Kingdom of Poland at that time) was united with Lithuania (i.e. the Grand Duchy of Lithuania) by a political union, which formed a state named "the Commonwealth of the Two Nations". In reality the country united numerous population groups of a variety of social, national and confession statuses; and speaking various languages. Those communities were governed by diverse common law systems and regulations originating from feudal rulers, provided in a large number of group and individual "privileges". During the long period of creating the union of the nations and evolution of the political system, which aimed at constituting the so-called Nobles' Republic, significant local diversities in the area of legal culture, particularly in the political, economic and social dimension, had to be eliminated. A crucial factor in alleviating unification processes of legal standard s and institutions and gaining social acceptance for them was, however, respecting certain cultural differences, and especially the attachment of the citizens to a particular language code, also in the official and legal sphere. The intensive codification activities required special sensitivity on the rulers' part, as well as the competence of cultural elites to solve problems of the communication and translation nature. The purpose of the Author is to present the complex language-related situation in the context of the legal culture forming at that time - also under the influence of Pan-European codification efforts - which became strongly entrenched in the consciousness and daily practice of the Polish-Lithuanian Commonwealth's citizens. It is also a historical phenomenon which deserves attention from the point of view of contemporary aims and problems of the multi-national European community. The subject of the next chapter: THE COHERENCES BETWEEN POLISH, FRENCH AND AMERICAN CONSTITUTIONAL DISCOURSE IN XVIII CENTURY (pp. 91-108) is the characteristics and the comparison of the legislative acts from XVIII century, namely: the Constitution of the United States of 17 September 1 787), the Po1ish Constitution of 3 May 1 791 and the French Constitution of 24 lune 1793. The style of its texts and the system of fundamental notions of these acts are the proofs of the strict coherences between the constitutional discourses of the three nations in XVIII century, in spite of the differences of theirs cultures and polities. The similarities of the legal cultures and legal languages are determining by the common principles of Roman law, of the Christian moral and Enlightenment's philosophy. The recognition of these historical relationships is important for the development of the democratic discourse in the modem States. Two next chapters refer to a certain coincidences and distinctions between the present Polish legal acts and the English and French ones. The study: EQUIVALENCE OF CONTEMPORARY ENGLISH AND POLISH LEGAL TEXTS WITH REFERENCE TO SELECTED DOCUMENTS OF THE EUROPEAN UNION (pp. 109-125) offers an analysis of selected issues conceming the equivalence of legal documents of the European Union written in English and Polish, on various levels of text organisation: orthographic (the spelling of proper names); syntactic (the preference for synthetic or analytic constructions, the use of auxiliary verbs, etc.); semantic (equivalence of modal predicates, general names, legal terms) and rhetorical (models of legislative discourse). It also discusses the problem of interference from the English-Ianguage original on the Polish version of many legislative documents of the EU. The second chapter: INTERNATIONALISATION OF LEGAL NOTIONS ON THE EXAMPLE OF POLISH AND FRENCH UNITS IN POP CULTURE TEXTS (pp. 126-138) intends to confront a certain Polish and French lexical units (single-word names and phraseological units) of legal and juridical origins, commonly used in press texts, televisions programmes and sensational literature, shows an in-depth interlingual parallelism, both on the level of nomination resources and basic semantic standards (similar schemata of conceptualisation). The analysis of lexical material proves that there is a close relation between consciousness and legal culture of both societies. It also shows that in the conditions of globalisation cross-linguistic translation fosters intemationalisation of legal institutions and names used in the researched area of communication. The last part of this work presents the three examples of the Polish law­-related discourse. Two of them refer to the historical context. The subject of the analysis presented in the first chapter LAW AND FREEDOM IN THE POLITICAL DISCOURSE OF THE PRE-PARTITION REPUBLIC OF POLAND (pp. 140- 157) is the political discourse in the period of the Polish republic of gentry (XVI-XVIII c.). The Author argues that in the centre of the contemporary debates there were always values related to two main notions ingrained in the consciousness of the citizens of the Polish-Lithuanian Republic : freedom and law. These central notions organise the ":field of discourse" and reveal the area of knowledge which is a characteristic indicator of the type and level of the culture (in this case political and civic one) prevailing in a particular time and place. The discourse conceming law and freedom proceeded with a changeable intensity throughout the whole period of the republic's existence and also after its downfall at the end of the 18th century. It reflects the significant attitude of citizens: from their attachment to legalism (rule of law) and initiative for the common interest to the protection of personal and political privileges of the ruiing class, i.e. "golden freedom" of the gentry. Despite the changeable historical determinants the discourse as proved by the Author - has maintained its relevance in the most crucial dilemmas appearing as subjects of disputes in the democratic society. The subject of the study: THE LITERARY LAW-RELATED DISCOURSE IN POLAND (FROM THE 16TH C. TO THE 19TH C.) (pp. 158-189) is indication of the main planes and forms of interpenetration of the legal culture of the First Commonwealth and the literary works created in the period from the 16th c. to the mid-19th c. In the state with a monarchical and republican regime, legal discourse played a privileged role in social communication and hence needed to be reflected in literature, in particular in genres such as drama, satire, novel, epigram, and in quasi-literary formats, such as diary, journal, letter. The literary law-related discourse is manifested on numerous planes of the literary works created in the examined epoch: the thematic one (e.g. literary comments to legal acts and institutional operations), the linguistic and stylistic one (i.a. legal terms and elements of the official style in literary works) and the communicative one (using the literary potential of genre forms of the statements characteristic of the sphere of legislation, jurisdiction and administration). In the study closing the last part of the present work: THE INFLUENCE OF JURlDICAL RHETORlC ON THE PUBLIC DISCOURSE IN MASS MEDIA (pp. 190-202) the author analyses the influence of modem juridical rhetoric on the language used in mass media by joumalists, politicians and experts who comment on public issues. The legal approach prevails among other ways of perceiving reality. The phenomenon is related to the process od "juridisation" of contemporary society's life. The author's attention focuses on linguistic aspects of the process whose results are both advantageous and ominous for the area of social communication.