Abstract
In the previous chapter, we saw that vocabulary does not suffice to determine the features of a discourse in a semiotic analysis of legal culture. We must therefore broaden our scope of analysis to include the context of vocabulary in order to find our object of study within legal discourse. Thus, the analysis of legal discourse requires we establish the difference between communicative practices in the law and communicative practices belonging to other kinds of social discourse. Approaching legal culture as a communication process is to focus on the language of the law in action. It is during this communicative process that the linguistic potential offered in intellectu is organized in actu, thus resulting in legal discourse. It is through discourse that a legal system is implemented and modified. What must be explored is what makes a discourse a “legal” discourse. We will identify the different kinds of legal discourse and propose a typology, which has the legal system as the starting point, and is based on the connection between the law and its written verbal manifestations.
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Notes
- 1.
It is in the process of communication that the system of legal signification is put into action. Legal discourse is, at the same time, a linguistic act – since it is the realization of natural language through which the subjects of the law communicate – and also, a legal act, serving the purposes of a legal end. To Cornu, “the legalness of discourse results from its goal. A discourse is legal when its goal is to create or carry out the law. This goal-based criterion is intellectual. It commands the logic and tone of the discourse at the same time.” Op. cit., at 22.
- 2.
J. Vanderlinden, “Langue et droit”, op. cit., at 68.
- 3.
G. Cornu, op. cit., at 22.
- 4.
Based on the structure in Jakobson (1963, p. 214).
- 5.
This book will not discuss the elementary structure of communication, that is, the structure that exists immediately before a signification process is triggered. This perspective is of the interest of a theory of information and is relevant to the study of informational processes between two mechanical apparatus, where the sign conveyed has no ‘signifier’ value. This phenomenon was addressed by Eco, who considered it a threshold semiotics case, since the relation between sender and receiver is carried out by a chain of cause and effect. See A Theory of Semiotics, op. cit., at 32–36.
- 6.
A. J. Greimas; E. Landowski, Semiótica e ciências sociais, op. cit., at 70.
- 7.
Pais (1994), at 164.
- 8.
The signs supposedly belonging to the semiotic system of law may vary according to legal culture in question. For this reason, the legal professional, who transposes expressions from other semiotic systems of law without addressing the adequacy of this transposition in the target legal culture, is being negligent. Take, for example, the concept of “equity”. According to Combacau and Sur, “equity” as stated in Article 38 § 2 of the Statute of the International Court of Justice (ICJ) is not the same as the concept of “equity” in Anglo-Saxon law “authorizing the judge to formulate a body of positive rules to complete or to push away from the normal application of law as a result of unpredictable cases, thus recognizing a normative power to the courts.” Combacau and Sur (2001), at 106. Moreover, one cannot overlook the variations in legal meaning that other signs acquire, thus being capable of covering portions of semantic space that verbal language does not reach. Some examples are the pictorial and gesture signs that convey volition and command. They are sign manifestations whose expression and content may vary according to the legal culture – in its broad sense – they belong to. This leads us to a transcultural understanding of the law at a time when, as Vattimo warns, the ‘Westernization of the world’ puts the real possibilities of knowledge of cultures in check. Cf. Vattimo (1987), at 159. According to Uspenskii, “from semiotics perspective, the historical process can be represented as a process of communication during which the affluence of information does not stop conditioning the reactions-responses of the social addressee (the socius).” B. Uspenskii, “História sub specie semioticae”, op. cit, at. 87, emphasis in the original.
- 9.
A. J. Greimas; E. Landowski, Semiótica e ciências sociais, op. cit., at 79, emphasis in the original.
- 10.
This criterion allow us to consider “legal” any discursive intervention that uses words and phrases that refer to the law, whether or not they have been employed within a legal context. After all, the legal discourse is not reserved solely to those that work in the law – even law professionals may use this discourse when divested of their role. Despite the adjective attributed to the vocabulary, no “legal” effect can be expected from its use except when applied in the appropriate context and circumstances. In addition, it is important to point out Ziembinski’s statement: “It is not the difference in the size of vocabulary, but the differences in the semiotic nature of complete utterances that create the foundation of the difference between ‘language of the law’ and ‘legal language’, even when the criteria of this difference are, in part, vague and questionable” (“Le langage du droit et le langage juridique”, op. cit., at 31).
- 11.
Cornu stresses that: “A discourse can be considered legal even though it employs terms that do not belong solely to the field of law (e.g. «Witness, please stand»). A discourse can be considered legal even when it does not employ any legal terms at all («Please, exit the room»). If a legal discourse can be made up of ordinary words only, it means that the legal message, produced according to the rules of natural language, which is the necessary vehicle, organizes the legal terms in this language, that is, it associates these terms to words in the general language (e.g. one who makes a promise must keep it in good faith)” Linguistique juridique, op. cit., at 213–214.
- 12.
Cf. G. Cornu, op. cit., at 237. Cornu uses the term “legal discourse” in its broadest sense, “where it encompasses not only the utterances of law stricto sensu, but also the utterances of fact and other types of utterances that may contain legal discourse (for example, a judgment, an utterance of law in its broadest sense as an act from a competent authority, containing reasons of both law and fact; it also contains the claim)” (Ibid, at 22, Footnote 6.) We have established the difference between “legal discourse” and “discourse of law” in the Preliminary Considerations of this book.
- 13.
It is important to point out the meaning of the phrase “legal text” for the purposes of this study. It is not the same as “legal discourse”, which refers to the plane of content, while the other refers to the plane of expression. This topic will be further addressed in Chapter 9.
- 14.
G. Cornu, op. cit., at 237. The typology of legal discourse can be guided not only by the nature of the subjects involved in communicating, but also by the nature of the message and the way it is expressed. In light of this consideration, Cornu adds that the discourse of custom is a kind of legal discourse. It identifies with the maxims and adages of the Law established by tradition.
- 15.
Z. Ziembinski, “La langage du droit et le langage juridique”, op. cit., at 30.
- 16.
Ziembinski says: “One interprets the statement ‘Every X must do C’, written in the text of a law, and which commands all X subjects to do C – as being a non-descriptive expression, neither true nor false, which formulates a command considered mandatory, or not, in a given legal system. When such utterance is found in a legal handbook or in another legal work, it is interpreted as a proposition (in the logical sense of the word) relative to the fact that such a norm is in effect within a given system, or [it is interpreted] as a proposition (true or false) providing information relative to the legal modality of an act (which would be: ‘according to the norms of the given system, carrying out C is prescribed for all X subjects’). In the domain of legal language, a statement that conforms to the structure in question is interpreted not as a legal norm, but as a proposition concerning a norm.” (“La langage du droit et le langage juridique”, op. cit., at 26).
- 17.
In this case, we would use linguistic criteria to determine whether a given text conveys legal discourse. These criteria help historians and anthropologists in interpreting ancient cultures.
- 18.
Ferraz (2003), at 223, emphasis in the original.
- 19.
Having in mind that the central problem of the source of law is ensuring the law is applied correctly, Ferraz Junior states that “the concept of source finds support in different common places provided by modern society, such as the sovereignty of law, freedom of contract, ethical rationality, history of legal phenomena, etc. Since its foundation is topical (from topoi, commonplaces), theory has no strictly logical finishing. Commonplaces are merely formulas for searching and guiding reasoning, which become explicit due to problems in decision-making. Among these commonplaces one should mention, as a kind of general guiding principle for the organization of other commonplaces, the liberal values of legal safety and certainty” Ibid, at 227–228.
- 20.
The lessons of Ferraz Jr. on the distinction between norm and law [statute] are worthy of note: “A norm is a prescription. A law [statute] is the shape which the norm or group of norms take in a legal system. Thus, a statute is a source of law, or the structural package of the norm that gives it the quality of a legal norm” (Ibid, at 233.) In addition, Dinh says that: “the confusion between norm and source is even more frequent when spurred by vocabulary. In order to overly, but comfortably, simplify this statement, the same word or the same phrase may simultaneously aim at a source and at the norms from which they stem: this is the case of the ‘general principles of law’ or ‘custom’. Thus, for more clarity, one should speak of customary norms in order to distinguish them from custom as a formal source” Dinh et al. (2002), at 114. The concept of formal source is different from the concept of material source. According to Combacau and Sur, material sources “are associated to the group of outside facts that are non-legal, which will inform the content of rules and influence in their development: power relations, cultural systems, ideological systems, etc…” (J. Combacau; S. Sur, op. cit., at 42, emphasis added). The idea of material source differs from the content of legal norm, even though it informs such content, by making use, as Dinh points out, of “direct translation of international structures and of predominant ideologies.” N. Q. Dinh et al., op. cit., at 112.
- 21.
The general prohibition of non liquet means that a competent court, must not refuse to decide a case on the ground that there is no law governing the matter.
- 22.
T. S. Ferraz Junior, Introdução ao estudo do direito, op. cit., at 246.
- 23.
The ratio decidendi is the general principle of law employed as a premise for providing grounds for a decision; nevertheless, the court, by invoking it, may also interpret it according to the court’s own reasoning. There is also the rule of precedent, or stare decisis, which should not be considered a mechanism that freezes the rules stemming from previous decisions. Although ratio decidendi never loses its force and effect, the passage of time may render it inapplicable – in the event the court is compelled to reshape its decisions in order to keep up with new situations. If stare decisis promotes legal certainty, the swings of case law ensure a relative flexibility to the common law.
- 24.
Garapon and Papadopoulos (2003), at 52. In Section 5.1, we will address the topic of legal traditions in more detail, thus discussing the differences and similarities among them according to Lótman’s typology.
- 25.
This is a non-exhaustive list. Public law scholars include two other important sources of public international law: the unilateral acts of Nation-States and the Resolutions of international organizations. This diversity of sources of law should come as no surprise. In fact, the term “sources”, in the plural, denotes the impossibility of having one single basis for the law, whether in the historical or logical sense of the term. Lastly, the absence of hierarchy among sources does not imply there is no hierarchical structure among legal norms, due to, for example, the degree of generalization of the norm’s content or according to its chronological position, resulting, thus, in two well-known adages: specialia generalibus derogant and lex posterior priori derogat.
- 26.
Article 59 of the Statute of the International Court of Justice states that “the decision of the Court has no binding force except between the parties and in respect of that particular case.”
- 27.
Emphasis added. According to Article 38(2) of the Statute of the ICJ, “this provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.” The problem of the role of equity may be raised as an incidental issue. It is an independent basis for dispute resolution the ICJ may adopt upon prior agreement of the parties to the dispute. According to Dinh when writing about a decision of the ICJ in 1982 (Plateau continental Tunisie-Libye, Rec. 1982, at 60), “equity is not a source of law, but a reference system for jurisdictional resolution of international conflicts” (N. Q. Dinh et al., op. cit., at 355). Equity would thus be a means of interpreting the rules of law.
- 28.
Shaw explains that “some writers deny that custom can be significant today as a source of law, noting that it is too clumsy and slow-moving to accommodate the evolution of international law any more, while others declare that it is a dynamic process of law creation and more important than treaties since it is of universal application. Another view recognizes that custom is of value since it is activated by spontaneous behavior and thus mirrors the contemporary concerns of society. However, since international law now has to contend with a massive increase in the pace and variety of state activities as well as having to come to terms with many different cultural and political traditions, the role of custom is perceived to be much diminished.” Shaw (1997), at 57, emphasis added. The increasing movement towards positivation of international law may be contributing to the decreasing importance given to custom when compared to the role custom played in the past.
- 29.
For the purposes of this study also called “the Vienna Convention of 1969”, “Vienna Convention” or simply, the VCLT.
- 30.
Article 2, § 1, “a”, of the Vienna Convention. Emphasis added.
- 31.
As written under Article 2 (1): “For the purposes of the present Convention: (a) ‘treaty’ means an international agreement governed by international law and concluded in written form: (i) between one or more States and one or more international organizations; or (ii) between international organizations, whether that agreement is embodied in a single instrument or in two or more related instruments and whatever its particular designation.” (Emphasis added). However, it is important to point out that the 1969 Convention, by defining “treaty” as a written agreement, does not deny the legal value of the so-called verbal agreements. This is evidenced by Article 3 of the Convention: “The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect: (a) the legal force of such agreements; […].” Emphasis added.
- 32.
J. Combacau; S. Sur, op. cit., at 57–58, emphasis added. The author rightly calls attention to the fact that the mechanisms through which customary norms are established are not the direct source of their content or authority.
- 33.
This book, in dealing with international law, does not emphasize the legal-legislative discourse, or the discourse of statutory law that make up the legal systems of Nation-States. Cornu, in his book, Linguistique Juridique, discusses legislative discourse (statutes), jurisdictional discourse (court decisions), and the discourse of custom (maxims and adages of the law), and although shifting from his focal point of analysis he also points out two other types: contractual discourse and administrative discourse (cf. op. cit., p. 215). The typology proposed by Wroblewski organizes legal language around four models: legal language, which imposes the authority of the legislator; jurisprudential legal language, enabling the assessment of legal language; scientific legal language, which focuses on understanding the dogmatism in interpreting the two previous languages; and common legal language, which is used by society, enabling us to assess to what extent legal language is socially. Wroblewski (1988), at 13. In trying to define a content for the term “legal discourse”, Troper states: “As legal discourse, one may understand […] the language used in the texts expressing norms, laws, international treaties, etc. […] and in the scientific works that describe or attempt to describe the law in effect.” M. Troper, “La notion de personne juridique” Realités du Droit International Contemporain: Discours Juridique et Pouvoir dans les Relations Internationales: l’Exemple des Sujets de Droit (Actes de la Cinquième Rencontre de Reims, Centre d’Études des Relations Internationales, Faculté de Droit de Reims, n. 3, 28/29, juin, 1980), at 4.
- 34.
Deontic meaning in the discourse of legal doctrine can only be assumed in the connotative plane. When speaking of the law, one also speaks of a discourse that threatens with its force or that is vested with a sense of imperativeness over the conscience of its addressees. The deontic connotation is therefore understood. It is not derived from the discourse of legal doctrine, but this discourse makes this connotation explicit when speaking of the law. According to Greimas and Landowski: “the very expression legal discourse already includes a certain number of presuppositions that must be explained: 1. It suggests that legal discourse should be understood as a subset of texts that belong to a larger group, consisting of all the texts expressed in any given language; 2. […]; 3. Considering a subset of discourses a legal discourse, implies, in turn, both the specific organization of the units which make up this discourse, and the existence of a certain connotation which is understood in this type of discourse, or, even both things at the same time.” Semiótica e ciências sociais, op. cit., at 72–73.
- 35.
G. Cornu, op. cit., at 237, emphasis in the original.
- 36.
It cannot be denied that Cornu has in mind the legal acts that convey these utterances, that is, the formal support against which the discourse of law is written. The fundamental role of writing is very apparent, as suggested by Timsit: “But, if in fact the law were more than the Word, Scripture? The law would not exist as a notion, […]. In fact, the law only exists in its manifestations. Thus, [the law] is manifested in and through scripture. And if it were to exist outside its texts – custom […] -, then, [the law] only comes into existence through outside manifestations which transform it into scripture […] This is what the law is: it is scripture, text […]”, and also the court decisions and international conventions. Timsit (1991), at 44–45.
- 37.
Since this book is on international law, I shall not address the legal discourse of municipal law.
- 38.
One must bear in mind the difference between normative text and legal norm proper. As explained by Caffé Alves: “[…] the legal norm has no meaning, it ‘is’ itself its meaning. One must differentiate the legal norm (as the meaning) from the normative text that shapes it, as its material support. A normative text, even with the same words, may have numerous meanings, i.e. numerous norms, which will be determined according to the hermeneutical effort. The legal norm is not a ‘thing’ that has, among other properties, the property of meaning. The literal normative text is what can have a meaning, precisely one that is established by a decision determining – among the many possible meanings that the text can have – it is a valid norm to be applied to a concrete situation in the law.” Alves (1996, at 165).
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de Carvalho, E.M. (2011). Legal Culture as Communication. In: Semiotics of International Law. Law and Philosophy Library, vol 91. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9011-9_3
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