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ILLOCUTIONARY
AND PERLOCUTIONARY ACTS
IN
CHINESE JUDGE'S ATTACHED DISCOURSE
Weiming
Liu
Northwest
University of Political Science and Law
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Abstract: After 2002, courts in China have increasingly
been introducing certain judicial reforms, one of them being
the improvement of trial language. In these courts, the
judges append their comments to the case at the end of their
verdicts in writing. The Chinese judge's attached
discourses resemble the obiter dicta of judges in Western
courts, but there are differences. Since the new element was
introduced in some courts in 1998, some doubts have been
voiced in strong opposition to the new practice, giving rise
to a heated academic debate on the issue. This paper
investigates and analyses Chinese judge's attached
discourse in terms of discourse analysis categories, such as
their usage of illocutionary and perlocutionary acts.
Keywords: illocutionary act, perlocutionary act, judge,
discourse, litigant
1. Introduction
One of the significant judicial reforms implemented in
China during the past few years is a language reform that
becomes manifest through an improvement in the diction of
judicial documents. Many courts now avoid previously common
derogatory terms such as frenzied, unscrupulous, severe
penalty, crack down on, etc., or traditional pejorative
phrases like despair gives courage to a coward.
Instead,
they uphold the litigants' rights and interests by
restricting themselves to a matter-of-fact legal language
with neutral terms, which embodies both justice and
civility. At the core of this reform of judicial documents
is the court verdict, which includes the judge's attached
discourse.
This discourse is a written comment of the judge appended
to the end of a court verdict. It is not a judicial document
in the strict sense, but rather a supplemental commentary
without binding power, and often contains moral and ethical
exhortations. It serves to mitigate the solemn nature of the
verdict by relating to the underlying social value system,
and further adds some warmth and compassion to the bleakness
of a legal decision. For example, according to the Chinese
view only as a last resort should opponents in civil cases
involving family values and responsibilities, such as
support of parents and grandparents or spouse and child
support in divorce situations, enter into litigation. If
they still do, this means they fail to voluntarily fulfill
their moral responsibilities and obligations, ignore the
ethical framework and over-emphasize their own interests. In
such cases, the judge’s attached discourse is to make the
litigants aware of those case-relevant ethical and moral
values that lie beyond the mere legal reasoning. It is to
add the human touch to a legal decision, stress the
interdependence of law and morality in society, and inspire
the litigants to understand the human concerns underlying
the verdict.
From what has been mentioned above, we can see that this
kind of discourse emphasizes the human touch, reason and
morals, so it can play an active role in condemning and
admonishing immorality and promoting excellent social morals
in such cases, especially in those concerning the party who
win a case in the legal sense, but lose an action in the
moral sense. Some legal experts even think that the judge's attached discourse is a “declaration of
morals” to a certain extent.1
The
judge's attached discourse is quite similar to
obiter dictum, which is widely used in the Anglo-American
law system. Firstly, both of them are attached to the end of
court verdicts to express the judge’s opinions or comments
ex parte. Secondly, both have no binding force and
effect on the final decision. However, the judge's
attached discourse and obiter dictum are not exactly the
same. There exist some differences between the two. On the
one hand, obiter dictum expresses more of the judge's
social and economic values, even love and hatred. On the
other hand, although obiter dictum has no binding force, it
is more like a final decision than the judge's attached
discourse. Besides, it merges into an organic whole with ratio decidendi. On the contrary, the judge’s
attached discourse emphasizes more reason or sense, human
concern and human touch than obiter dictum. As a result, its
content is full of instructive and inspirational
significance, conviction, affinity and public trust. From
these differences, we can see that obiter dictum embodies
more of the judge's wisdom and character while the
attached discourse shows more of the judge's welling
emotions.2 Here, the judge's attached discourse uses the
form of obiter dictum as a reference, but as far as the
content is concerned, the two are different from each other.
Since the judge’s attached discourse was first used in
a civil case in Shanghai No.2 Intermediate People’s Court
in 1998, more and more courts in China have taken this
measure. From 2002 to 2003, more and more courts in many
places, such as Nanjing, Kunming, Changsha, Luoyang,
Yancheng, Qinghai, Shanxi and Zhouning County, were
employing this method. All these courts have achieved good
results and social effects. However, though it has received
high praise, the attached discourse is faced with some
doubts and strong oppositions and has thus aroused a heated
academic debate. Summing up these ideas, the doubts or
oppositions mainly include the following points: 1. Court
verdicts, in fact, contain morals. Judges should be sure of
this, but the attached discourse neglects this point. 2. The
attached discourse should not go beyond law. 3. Judges
should merge reason or sense into court verdicts, so as to
blend the human touch with law (Zhang 2002). 4. The attached
discourse blurs the difference between law and morals and
causes the disruption of judge's role and the procedure
(Mi 2003; Wu 2003). 5. The attached discourse is out of
harmony with the form and content of court verdicts.3 Here,
the debate is going on all from the legal point of view.
However, the present paper will deal with this problem
linguistically, which means an attempt to investigate and
analyse such a discourse according to the theory of
illocutionary and perlocutionary acts, to prove its
feasibility as well as its limitations.
2. Illocutionary acts in Chinese
judge's attached
discourse
Shuy (2001:444) says, “One of the defining
characteristics of discourse analysis is that it is capable
of application in a wide variety of settings and contexts.
Wherever there is a continuous text, written or spoken,
there is a potential analysis of such a text”. According
to Shuy, although the attached discourse is the unilateral
and written form or monologue by the judge, it looks forward
to the litigants’ positive responses most eagerly.
Besides, it can be analysed in the context of a court trial.
In this kind of context, the speech acts of the judge and
litigants are not genuine face-to-face interactions, unlike
ordinary conversations, but the judge and litigants play
different roles. They can interact with each other easily,
thus bringing about consequential effects on the litigants.
From this point of view, the judge’s attached discourse
has more interactions than ordinary written discourses. It
can be said that this kind of discourse is a kind of a
special conversation. Therefore, it is necessary to analyse
the illocutionary and perlocutionary acts in this discourse
in order to find in the context of a court trial how the
intention of the discourse is produced by the judge, and how
the consequences are brought on the litigants.
According to Austin (1962:103), the application of any
discourse can perform three kinds of act–the locutionary,
the illocutionary, and the perlocutionary. A locutionary act
is just to utter a certain sentence with the meaning in the
traditional sense. It is the act performed in saying
something and does not show any design, intention, or
purpose, but its force is identical with the speaker’s
intention. An illocutionary act, however, is a conventional
act, which is done with design, intention, or purpose. It is
performed by or resulting from saying something, so it is
the consequence of the discourse. Therefore, an
illocutionary act gives a discourse illocutionary force
which then has an effect on others, accomplishing the
intention. The attached discourse is the words “from the
bottom of the judge’s heart,” based on the details of a
case at the end of a court trial. It has clear design or
intention, strong influence and illocutionary force.
Besides, a court trial is a kind of a highly stylized
context where there is a set of conventional rules to
follow. These rules restrict the content and expressions of
the attached discourse. There is no choice in this matter
for the judge and just for this reason, the judge’s
attached discourse is feasible in a court trial. For
example:
Case 1
This
is a civil case of dispute over money obligation.
Zhou (wife) received compensation in the amount of 8,100
Yuan (RMB) from her husband’s unit after his death in a
traffic accident. However, her mother-in-law claimed some of
the payment from her. As a result, they came into conflict
with each other and engaged in a lawsuit. In accordance with
specific conditions, the judge decided Zhou should give
1,000 Yuan (RMB) to her mother-in-law. Though it was a fair
result, their emotional attachment had been damaged. With a
view to repairing it, the judge attached the following
discourse to the case at the end of the court verdict:
Money cannot substitute for emotional attachment. Get rid
of old grievances to renew past cordial family relations.
This is not only a question for the litigants and other sons
and daughters to ponder deeply over, but also a mutual goal
for you to achieve.
Case 2
This
is a civil case of divorce. Since they began to do
some self-supported business, Peng (husband) has been
dissatisfied with Liu (wife) arrogating all family economic
powers to herself. Consequently, they often quarrelled with
each other and then decided to live apart. Afterwards, Liu
resorted to proceedings to claim a divorce from Peng. The
judge did not grant the divorce, and then wrote down what he
would like to say at the end of the court verdict.
Any happy family will have conflicts between husband and
wife. Now that the conflict has arisen, the two parties
should keep a clear head with a view to solving the existing
problem through active communication. Congenial love between
husband and wife should rely on complete confidence in each
other.
Case 3
This
is a civil case of a succession dispute. Mu
(plaintiff) and Dong (defendant) had had many complaints
against each other before they engaged in this lawsuit.
However, they have got rid of old grievances and become
reconciled with each other again just after the lawsuit. The
reason for this was that they were deeply moved by the
following attached discourse:
His father died when the plaintiff was very young and the
defendant’s spouse died when she was middle aged. Such
things are really tragedies in the world. The two parties of
the case ought to sympathize with one another because of
their misfortunes, but it is a great pity that they had
instead a dispute for the heritage of the dead and caused a
more serious damage to their own hearts. The law can handle
this succession dispute between the two parties fairly, but
money cannot substitute for emotional attachment at all. The
departed is gone; his kinsfolk are still alive. How can the
departed close his eyes in his grave when his kinsfolk are
disputing about his heritage? I wish the two parties to get
rid of old grievances, to respect and love each other, and
to renew their emotional attachment. It will really be a
great joy to see everything happy and prosperous in your
family!
According to John R. Searle (1969:48), the sentence
provides a conventional means of achieving the intention to
produce a certain illocutionary effect in the hearer. If the
hearer understands the sentence, the intention will be
achieved. In the cases mentioned above, the sentences in the
attached discourse stress “affection,” “morals” and
“human touch” and reveal judge’s intention explicitly.
Besides, in Cases 1 and 3, the sentences like “Get rid of
old grievances to renew past cordial family relations,”
and “I wish the two parties to get rid of old grievances,
to respect and love each other, and to renew their emotional
attachment,” in fact, produce a moral call to the
litigants and request them to respond to the attached
discourse in a positive way, to perform certain conventional
acts and to carry out their obligations. Although there are
no such sentences in Case 2 and there are only two sentences
like this in Cases 1 and 3, the entire attached discourse
expresses the identical meaning and produces the identical
illocutionary acts. These acts have strong illocutionary
forces.
The context can be divided into “linguistic context”
and “nonlinguistic context” (Huang 1988:44; He 1989).
The linguistic context depends on cohesion and coherence
while the nonlinguistic context goes beyond sentence
meaning. Nonlinguistic context can tell us how illocutionary
force expresses the discourse. In a court trial, the hearers
are in fact the litigants of the case. They show a great
deal of concern for the case and are most eager to know the
judge’s decision and opinion. In this sense, they have
strong motivations. Therefore, in these two contexts, they
can understand the meaning and intention of the judge’s
attached discourse completely. In this way, the discourse
takes its expected effect.
3. Perlocutionary acts in Chinese judge’s attached
discourse
A successful performance of an illocutionary act in
interactions can bring about the expected consequences and
produce the act that tallies with the speaker’s intention,
a perlocutionary act. From the examples in the previous
section, we may have felt the effects brought about by the
judge’s attached discourse. Normally, the litigants will
produce certain actions in the context or will be much moved
by what the judge says. However, saying something will also
produce certain consequential effects upon the feelings,
thoughts or actions of the audience and the speaker (Austin
1962:101; Searle 1969:25). Based on this, the discourses
with the same meaning may produce different consequential
effects while the same consequential effects may be achieved
by different discourses with different meanings because
different hearers may have different knowledge, ideology and
character which will produce different feelings, thoughts or
actions. Therefore, it seems true that a perlocutionary act
does not necessarily have any connection with an
illocutionary act.
From this point of view, the litigants of a case may
respond to the judge’s attached discourse positively or
negatively. If the litigants respond positively, the
attached discourse will achieve its intention. If they
respond negatively, such a discourse will not be
“reasonable.” This is the most important point–we
should notice that the context of the attached discourse is
a highly stylized court trial where what the judge says and
the expressions he uses is carefully devised. Since most of
the cases involve an emotional attachment, the judge’s
attached discourse will produce consequential effects on the
feelings, thoughts and actions of the litigants. A lot of
examples can show that the litigants responded to the
attached discourse in a very positive way. In Case 1, the
daughter-in-law and mother-in-law were deeply moved by the
discourse and soon afterwards they became reconciled; in
Case 2, the husband was inspired greatly by the attached
discourse and said that he would not seek divorce any
longer; in Case 3, the two parties said that they would
submit themselves to the fair court decision, and that it
was the attached discourse that put them right on how to
understand the rule of law and morality. There are of course
still more examples in which positive consequential effects
are achieved. All these cases show that the judge’s
attached discourse really works. It is really convincing.
Just because of this, it can be called a “tender court
decision” (Mi 2003).
4. Conclusion
Although the Chinese judge’s attached discourse
conforms to the conditions of illocutionary and
perlocutionary acts and achieves excellent effects, it is
not omnipotent. Of course, it has its own limitations and
some of its problems should be discussed.
Firstly, as has been discussed in the previous section, a
perlocutionary act does not necessarily have any connection
with an illocutionary act because many factors have an
effect on the consequences. Based on this point, the speaker
and listener’s interaction determines the effects. The
effects are determined by the listener’s responses or
acts. In judicial practice, the litigants’ feelings,
thoughts and actions are not at all stable. Though the
judge’s attached discourse has a highly stylized context,
explicit convention and strong illocutionary force, it can
only be used in civil cases which involve “emotional
touch.” This means that it cannot be widely used in other
cases, especially criminal cases because the complexity of
these cases determines the complexity of the litigants’
feelings, thoughts and actions and we are not sure whether
they would respond positively or negatively. Secondly, this
problem triggers a second one–the expressions in the
attached discourse. The expressions should be deeply
devised, based on the details of the cases. Proper
expressions can bring in strong illocutionary force, so as
to affect the litigants. Without proper expressions or an
appropriate choice of words, the judge’s attached
discourse will not achieve the expected perlocutionary act.
Thirdly, the judge’s attached discourse is mainly
applicable to such cases as support for parents and
grandparents, bringing up children, succession disputes,
divorce and the like. These cases often involve emotional
attachment, and so the litigants tend to respond positively.
However, in other cases, especially in criminal cases, the
litigants are usually more emotionally unstable. Thus, the
illocutionary and perlocutionary acts of the attached
discourse are most likely to be limited. This is the reason
why such a discourse is not widely used in other cases.
At present, some courts are trying to apply this kind of
discourse to criminal cases concerning minors as well as
civil cases concerning the disputes of damage compensation
and reputation. The effects are encouraging, and show that
the judge’s attached discourse still has room for further
development. Provided that its expressions are well-designed
according to the nature of different cases, it will
certainly produce strong impact and achieve excellent
long-lasting effects.
Notes
1 See “The
judge's attached discourse: declaration of
morals.”
http://www.szrbs.net/news_content.asp?ns_id=234&nc_id=184430&newstype=1.
2 See Li Jiangping, “Discrimination and analysis of
attached opinions.” http://www.dffy.com/faxuejieti/ss/200311/20031118153825.htm.
3 See Zhang Peng, “Should court verdicts have human
touch–debate aroused by the judge's attached?" Beijing
Evening, June 27, 2001.
References
Austin, John
L. How to Do Things with Words. New York:
Oxford University Press, 1962.
He,
Zhaoxiong. Essentials of Pragmatics. Shanghai:
Shanghai Foreign Language Education Press, 1989.
Huang,
Guowen. Essentials of Text Analysis. Changsha:
Hunan Education Press, 1988.
Mi, Jian. “Creativity and unification of judicial
reform–should the judge's attached discourse be
postponed?” Legal Daily, March 13, 2003.
Searle, John
R. Speech Acts: An Essay in the Philosophy
of Language. Cambridge: Cambridge University Press, 1969.
Shuy, Roger W. “Discourse analysis in the legal
context.” In The Handbook of Discourse Analysis, edited by
Deborah Schiffrin, Deborah Tannen and Heidi Hamilton,
437-452. Oxford: Blackwell, 2001.
Wu, Xuean. “Advantages and disadvantages of the
judge's attached discourse." Economic Reference News,
Aug. 13, 2005.
Zhang, Zhiming. “The
judge's attached discourse and
the combination of affection and law." People's Court
Newspaper, Nov. 22, 2002.
Published in: Lodz Papers in Pragmatics 3
(2007):137-144
DOI10.2478/10016-007-0009-4
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