Recipient Design of Statutes and Judgments

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ABSTRACT

One of the distinguishing features of legal discourse is the highly restricted institutionalization of its authorship which is mirrored in the specialized character of the legal audience (cf. Goodrich 1987:117). This paper seeks to explore the various distinctions that can be drawn on the recipient side of legal communication on the basis of two legal instruments: statures and judgments. It is argued that it is the communicative function of specific legal texts that determines the type and, consequently, the identity of their recipients. The function in question is, in turn, crucially conditioned by the illocutionary intention manifested in a legal text by its producer. The notion of an illocutionary intention originates from speech act theory which provides a theoretical framework for the recipient-oriented analysis of legal texts carried out in the current study. Compatibility of speech set theory with the fundamental concepts of the positivist theory of law ensures, it is hoped, that the proposed account of recipient design is justified not only on pragmalinguistic but also on legal grounds.

1. Introduction

In this paper, I want to examine recipient statuses that can be distinguished in statutes and judgments. Although these instruments are central to legal discourse, neither jurists nor linguists can agree on such fundamental issues as to whether or not the texts in question are directed at addressees, who these addressees may be, and what functions they fulfill. My aim, therefore, is to tackle all these questions from the vantage point of speech act theory--a framework of inquiry which, since its inception, has been successfully applied in many studies of institutional (including legal) speech acts (cf. Austin 1962; Samek 1965; Nowak 1968; Hancher 1976; Tiersma 1986). However, traditional speech set theory has been preoccupied, on the recipient side, almost exclusively with the addressees of illocutionary acts, as a result of which the different roles that other participants in legal discourse may perform have remained largely unaccounted for. In order to overcome this drawback, my research is based on a modified version of Clark and Carlson's (1982) model in which the whole recipient design of legal texts is determined by the producer's illocutionary intentions. (1) One merit of employing the concept of illocutionary intention, along with other basic notions of speech act theory, is that the account proposed here becomes compatible with the positivist theories of law and legal acts. As a consequence, the insights into the recipient design of statutes and judgments that a speech act analysis provides are subsequently corroborated also by the world of law from which these acts originate.

2. Theoretical background

Austin (1962) and Searle (1969), as well as most of their followers, adopt a model of communication in which the speaker produces an illocutionary act directed at the hearer who is at the same time the addressee of that act. Scholars working in the standard speech act framework analyze exchanges between two parties only, ignoring other roles that participants in discourse may assume. Yet, in speech acts it is possible to distinguish, apart from the traditional functions of the speaker (addresser) and the hearer (addressee), further participant statuses as well. Different positioning of speech act interactants and the effects of the presence of a third party on the significance of the speaker's utterance to the hearer may have far-reaching consequences for the interpretation of speech acts. All these factors should therefore be examined not only in the analysis of everyday conversation but, as will be shown below, of more formalized types of discourse as well.

The various roles to which hearers and other parties in a conversation can be assigned by speakers, and the ways in which speakers produce their utterances with these participants in mind, are collectively known as "recipient design"--a notion originating in the studies of the sequential organization of conversation (cf. …