The law is a profession of words The

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 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 deicidendi 2 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.