特别报道：第七届国际法律语言学大会在英国召开
第七届国际法律语言学大会论文摘要
（四）
Larry Solan
Brooklyn Law School
Pernicious Ambiguity in Legal Texts
The
law regards legal texts,such as statutes and contracts,as either
plain or ambiguous.If plain,principles of interpretation call
for the language of the document to be given special deference.If
ambiguous,then those interpreting the document are permitted to
adduce additional extrinsic evidence in an effort to ascertain the
drafters’intent.The word “ambiguous”is used to describe
all kinds of indeterminacy,from linguistic ambiguity,to
vagueness,to terms that simply underspecify certain aspects of
meaning.This paper addresses a problem that the law treats
inconsistently:What happens when two parties regard a text as
plain,but they disagree about what the plain meaning is?Asecond
version of this problem arises when different courts assign
inconsistent interpretations to the same legal terms,and do so
with certainty.Should linguistic variation of this nature be
considered evidence of ambiguity in the legal sense?If not,
should courts choose one or another of the various interpretations
and deem the language plain?Courts are in disagreement as to how
such cases should be handled.The paper attempts to describe and
explain the linguistic circumstances in which this phenomenon is
most likely to occur.These disagreements occur far more often
when the linguistic problem is vagueness,rather than ambiguity.
People are not in consensus over borderline cases,but are able to
recognize two different senses of a word,or two different
syntactic analyses of a sentence.The paper concludes with a
discussion of experimental work,now in progress,to test whether
people purporting to find language plain in the teeth of
inconsistent interpretations by others are being entirely sincere.
Godfrey A.Steele
University of the West Indies,St.Augustine
The
language of the law and the interpretation of the law:Issues of
language and communication
On
November 202003,The Privy Council [PCA182003]dismissed an
appeal against the sentence of murder [Roodal v Trinidad and
Tobago],which had earlier been dismissed by the Court of Appeal.
The appeal was based on the question of whether the imposition of
the death penalty was mandatory or discretionary.The Privy
Council ruling was based on an approach to three issues 1)whether
section 4of the Offences Against the Person Act 1925was
consistent with section 62of the Interpretation Act 1962,2)
whether section 4needed to be modified to provide a discretionary
penalty,and 3)whether the imposition of a death penalty violates
the constitutional principle of the separation of powers.An
analysis of the 50-page,110-paragraph judgement revealed 13
specific references in 9paragraphs to the language of the law and
73references in 44paragraphs to the interpretation of the law.
Using the text in the Privy Council’s judgement,this paper
examines the significance of the treatment of the language of the
law and the interpretation of the law relating to the imposition
of the death penalty in Trinidad and Tobago.Acase is made for a
course of study designed to sensitize legal practitioners to the
language and communication issues that affect their understanding
of the language of the law and their interpretation of the law.
Natalie Stroud
Monash University,Melbourne,Australia
The
Koori Court in Victoria:a response to the over-representation of
Indigenous Australians in the Criminal Justice System
The
Koori Court pilot program,initiated by the Victorian Government
in 2002following recommendations made by the Royal Commission
into Aboriginal Deaths in Custody (1991),addresses the concerns
of a number of linguists including Eades,Gibbons,Walsh and Cooke
regarding the cultural and language disadvantages experienced by
Indigenous Australians in the formal court context.This paper
will examine ways in which the specific linguistic features that
have been identified as problematic for Indigenous Australians in
the courtroom context are neutralised through the operation of the
Koori Courts,such as alternatives to the question/answer format
and recognition of cultural meanings attached to silence.Other
associated innovations will be reviewed.Since the introduction of
the Koori Courts,under the jurisdiction of the Magistrates’
Court of Victoria,findings indicate an overall increase in the
level of awareness of legal professionals involved in this
initiative,with a positive response from many of the Indigenous
community groups who have appreciated involvement in the legal
process.New programs and specialist services have also been
implemented by many supporting agencies,including partnership
programs with Indigenous community groups by both Victoria Police
and the Courts.Victoria now has three Koori Courts in operation,
with two more courts to be opened in 2005,including a Koori
Children’s Court.Changes in awareness of all participants
through on-going education and training have resulted in many of
the special needs of Indigenous Australians being addressed,
leading to a reduction in recidivism and a greater participation
of local Indigenous communities in the legal process.
Yves Talla Sando Ouafeu
Universität Freiburg in Breigau,Germany
“The Use of Prosodic clues in the identification of the
national origin of English-speaking African Asylum seekers in
Germany:Focus on Cameroon and Nigerian English speakers”
Quite
a great deal of research has been undertaken to point out the
extent to which a given asylum seeker’s real country of origin
can be determined on the basis of linguistic evidence.As regards
Asylum seekers from the English-speaking regions of Africa,Simo
Bobda et al (1999)demonstrate that it is very possible to
identify a given speaker’s real country of origin on the basis
of phonetic and phonological features,of lexical features,of
sociolinguistic clues and of sociocultural clues.These various
clues are very plausible,but prosodic cues as well can contribute
significantly to the identification of Africans seeking asylum in
Germany.It is the aim of this paper to point out some prosodic
features,namely some tonal or intonational features which can be
vital in helping associate a given speaker with his or her country
of origin.Bearing in mind the fact that the intonation patterns
of most African Englishes have not been comprehensively
characterized,this paper will restrict itself to two West African
varieties,namely Nigerian English and Cameroon English.
Simo Bobda,Augustin,Hans-Georg Wolf and Lothar Peter(1999)
“Identifying regional and national origin of English-speaking
Africans seeking asylum in Germany”.Forensic Linguistics 6(2):
302-321.
Sam Tomblin
Cardiff University
Author
Online:Evaluating the Use of the World Wide Web in Cases of
Forensic Authorship Analysis
Increasingly,
forensic linguists are using the World Wide Web (WWW)as a tool in
forensic authorship analysis cases as a representative corpus of
language.Perhaps most notable was Fitzgerald’s use of the WWW
in the FBIinvestigation of the Unabomber,in which a combination
of twelve lexical items and phrases were used as search queries on
the WWWin order to demonstrate the idolectal habits of the
Unabomber.Using lexis as a marker of authorship,and the Unabom
investigation as a case study,this research begins to evaluate
the effectiveness of using the WWWin cases of forensic authorship
analysis.Firstly,the process of devising a lexical profile for
an author based on their lexical habits across a series of known
writings is described.The individual lexical profiles of an
author are then used as search queries on the WWW,on the premise
that if lexical habits are constant,other documents authored by
the same person,but not used in the study,should be returned by
the search engine,which may then be more indicative of common
authorship.For example,when Fitzgerald entered twelve lexical
items as a search query on the WWW,it may have been more
conclusive that Kaczynski was the author of the Manifesto if other
documents also authored by Kaczynski had been returned by the
search engine,rather than multiple variations of the Manifesto,
which may be more suggestive of an investigation into plagiarism
through lexical overlap.The research concludes by arguing that
the effectiveness of using the WWWin cases of forensic authorship
analysis is diminished because search engines are not yet
developed robustly enough,leaving large proportions of the WWW
un-searched.Also,there is variation between the results returned
by different search engines and additionally when repeated after a
short period of time,suggesting that reliability of the WWWis
low.Implications for authorship analysis are discussed,including
the effect of different genres as comparison texts.Additionally,
it is suggested that successful and conclusive attribution of a
Questioned Document to an author using the WWWin this way would
require every author in the world to have published extensively on
the WWW.
Fleur van der Houwen
University of Southern California
The
court of ‘common sense’:a discourse analysis of judicial
approach and morality on Judge Judy
Respondents
indicated that they rely ‘sometimes’or ‘regularly’on
televised small claims courts for information about the U.S.legal
system.These percentages show that such productions serve not
only to entertain,but may also provide an important role molding
lay views of institutionalized dispute resolution.The TVcourt
show Judge Judy,presided over by Sheindlin,a former family court
judge,has been criticized both in the popular press and by some
from the legal community (Lynch 1999,Dershowitz 2000,Lovel Banks
2003)to misrepresent the proceedings in regular small claims
courts.Lynch (1999-5)states that the image of the law it gives
might be so appealing that it undermines “public confidence in
the existing court system through its seductively simplistic
portrayal of itself as a ‘court of common sense’.”Based on
a corpus of 42cases of Judge Judy,the current study examines
this ‘common sense’from a discourse-analytic perspective.
Sheindlin reframes the legal dispute as a moral dispute and
renders both a legal (sounding)and a moral judgment.Using
Lakoff’s term (1990),a ‘strict father morality’forms the
basis for Sheindlin to negotiate with litigants what the case is
about.By doing so,she can funnel the often very complex and
opposing versions of events that litigants give to a simple story
leading to coherent judgments with clearly winning and losing
litigants.
References:
Dershowitz,Alan.The Case against Judge Judy.New York Daily
News.Sunday,March 26,2000
Lakoff,George.1996.Moral Politics:What Conservatives Know that
Liberals Don’t.Chicago:University of Chicago Press.
Lovell Banks,Taunya 2003Will the Real Judge Stand-Up:Virtual
Integration on TV Reality Court Shows in Picturing Justice.The
Online Journal of Law and Popular Culture.
Lynch,Andrew.Judge Judy:A Face of Justice (with a
Chancellor’s Foot).National Law Review 5,1999.
National Center for State Courts.How the public views the state
courts.A1999national survey.1999.
Susanne van der Kleij
Radboud University Nijmegen/Ministry of Justice,The
Netherlands
Interruptions
in Asylum Narratives at the Dutch Immigration Service
In the Dutch asylum procdure,a foreigner is subjected to two
interviews in which he provides all the relevant information for
his application.In the second interview the foreigner is asked to
explain the reasons why he left his country.It is the immigration
officer's task to let the foreigner tell his asylum narrative in
his own words and without interruption,or as little interruption
as possible.There are several potential reasons why the foreigner
would not be able to tell his story with no interruption at all.
The first reason is an obvious one:the immigration officer and
the foreigner don't understand each other's language and need an
interpreter to assist them.The foreigner has to cut up his asylum
narrative in order to allow the interpreter to provide a
translation.Other reasons why the foreigner can be interrupted
have to do with the length of the narrative and the relevance of
the information.The open question that is used by the immigration
officer to invite the foreigner to tell his asylum narrative can
lead to a overextended story,starting many years before the
departure from the country of origin and in which no detail will
be omitted.However,not all information will be relevant for the
immigration officer.Also,the officer is likely to set a
time-limit to the interview --normally an interview takes about
two to three hours.For these reasons the immigration officer will
sometimes interfere.In this paper Iwill use the information from
eight different asylum interviews to show to what extent a
foreigner is interrupted during his asylum narrative,and for what
reasons and by which verbal means these interruptions take place.
Margaret van Naerssen
Immaculata University &University of Pennsylvania
Testing
for Possible Faking of Language Proficiency by Defendants
Attorneys
and law enforcement officers sometimes need to determine the oral
proficiency of a defendant/suspect.It becomes especially
challenging when defendants/suspects claim low language
proficiency.However,even language testing can be problematic if
the speaker decides to shut down or tries to manipulate the
testing situation.This report is about a testing sequence
involving a proficiency interview and a bilingual task.They were
used in a federal case in the US.The bilingual task shows promise
for wider use,but more research is needed.Awidely used foreign
language interview protocol (ACTFL OPI)was used as the primary
assessment tool in this case;however,more was needed.Under most
foreign language testing conditions,examinees want to display
their highest level of proficiency.However,in legal contexts
defendants/suspects may decide it’s in their interests to
pretend a lower proficiency to trigger procedural challenges about
legal rights or to avoid taking responsibility for their actions.
Thus,they may try to manipulate the testing situation.However,
analyses of recordings of the testing can be compared to
recordings of other interactions (wire taps,police interviews or
other recordings)to look for patterns of language use,especially
along language development lines.However,without that additional
audio evidence what can be done?Abilingual story-retelling task
was developed using the defendant’s Chinese dialect and English.
After hearing the story and doing a short non-verbal task (to
reduce the effect of short-term memory),the defendant retold the
story in Chinese.Apropositional analysis was done of the retold
story and compared with the original bilingual story.The
assumption was if the defendant understood any of the English
version (containing some different information),some would
probably appear in the retold story.The development of this task
and its use in the case will be described.
Maurice Varney
"You
have already won a guaranteed major prize".The use of
language to deceive and rob
Every day,people throughout the UKopen their post to find they
have unexpectedly won a draw,lottery or other exciting prize.
While some of this mail is genuine,most of it is a dishonest
attempt to trap people into parting with money with nothing or
little to show for it.Usually,it looks too good to be true.So
why are so many people taken in and persuaded to follow up?This
presentation will examine the choice of language used in these
declarations and try to establish how it takes people in and to
what it appeals :stupidity;greed;vanity;loneliness;fantasy;
credibility;ignorance;etc.The language will also be examined
from the point of view of Trading Standards Departments securing a
conviction for fraud.One offer which promised "£2,000"
actually gave vouchers (of very limited worth)for High Street
Use.They should have said "to the value of £2,000".
Is there a case here?Can we find linguistic evidence which can
help to stop these fraudulent thieves at their game?
Michael Walsh
University of Sydney,Australia
Educating
the judge?Linguistic evidence in Native Title and land claim
cases in Australia
For
nearly 30years linguists have been appearing as expert witnesses
in a wide array of cases involving land rights for Indigenous
Australians.These linguists have often enough found themselves
trying to explain some of the niceties of linguistics to a legal
audience with varying degrees of receptivity.In particular it is
useful if the judge hearing the case has apprehended these
niceties with an acceptable degree of accuracy.Among the issues
to be considered are:the link between an Indigenous language and
a particular tract of land;the relatedness or otherwise of
neighbouring languages;knowledge and use of a language;the
stability of a language group in a particular area;and of course,
lexical semantics.Occasionally there are expert witnesses in
linguistics appearing for different interests so the judge must
reach an appropriate conclusion on disputed issues from these
expert witnesses.There has been considerable debate among
anthropological experts in such cases about their role in the
proceedings –including the extent to which they should appear
as a ‘neutral’expert or as an advocate.Among the growing
literature in this area is a paper entitled ‘Don’t Educate the
Judge:Court Experts and Court Expertise in the Social
Disciplines’!In this paper we survey some of the attempts in a
range of Native Title and land claim cases in Australia –
whether blatant or by stealth –to educate the judge.This will
draw on transcripts of proceedings,expert reports by linguists
and judge’s reports/decisions.We conclude with some suggestions
for more effective practice by linguists in this rather
specialized and problematic legal arena.
Amy Wang
Lancaster University
When
precision meets vagueness:a corpus-assisted approach to vagueness
in Taiwanese and British courtrooms
Vagueness
in language often carries negative connotations,and this is
particularly the case in legal contexts.Yet vagueness is a
natural part of language (e.g.Channell,1994,Williamson,1994).
It conveys various functions in language use;for example,it
enables speakers to flag their utterance as uncertain,and to
compensate for a lack of more precise information.Precision and
imprecision in legal language has already attracted the attention
of scholars (e.g.Solan,1993),but has tended to focus on written
legal texts.This paper examines vagueness in (i)spoken contexts,
namely courtroom discourse and (ii)two different cultural
settings (British and Taiwanese).It explores the interaction of
some opposing tendencies in courtroom exchanges:how the
expectation in high precision of court language interacts with the
natural phenomenon of language vagueness,and how high-precision
legalese interacts with the language used by lay people (e.g.
plaintiffs,defendants and witnesses).Drawing upon corpora
consisting of transcriptions of Taiwanese and British criminal
court proceedings,the paper compares the patterns of linguistic
vagueness between these two legal systems,of which the former
belongs to the continental law system and the latter an
adversarial system.It will be demonstrated that some vagueness
patterns and functions are common to both the British and
Taiwanese legal settings (e.g.self-protection,modifying the
illocutionary force and marking speaker’s subjective
assumption),but they are realized in markedly different ways in
each.Finally,it will also be shown that manipulation of
vagueness in court is closely connected to participants’goals
in the context.
Bencie Woll and Joanna Atkinson
City University London
Deaf and No Language:Communication and the Law
There is a large and comprehensive body of literature on the
effects of linguistic isolation on the acquisition of language but
few studies considering the outcomes in terms of the law and
interpreting.Deaf children with hearing parents may receive very
limited input of spoken language because of their deafness.In
addition to lack of access to spoken language,some individuals
may not be exposed to a sign language in childhood or adolescence.
Such cases have been reported among individuals who live in
non-Western communities where they are the only deaf person in the
community and where there is no access to formal schooling.The
case described here is of a deaf man (Muniram),who was first
exposed to a sign language when he immigrated to the UKat the age
of 25in 1980,and who has been recently charged with a number of
criminal offences.The presentation is in three parts.In the
first part,a general introduction will be presented of semi-lingualism
in deaf people with limited exposure to language.In the second
part,the results of a detailed cognitive and linguistic
assessment undertaken with Muniram will be discussed;and the
third section will present an analysis of interpreted police
interviews with him in the light of the assessment findings.The
conclusions will be concerned with the implications for the
participation of such individuals in the legal system,and the
issues for interpreters called upon to work with people like
Muniram.
Liping Zhang
Guangdong University of Foreign Studies,China
Negotiating
Justice:dialogism in lawyer talk in Chinese courtroom
While
most studies on lawyer talk focus on the examination of power and
control in judicial communication with laymen in terms of the
sequential organization,questioning techniques in conversation.
This paper aims to analyze,both thoroughly and systematically,
lawyer’s language in terms of how he expresses his attitudes,
viewpoints or propositions toward the litigated case,including
both the litigated act,and the law.This study is to be conducted
with a corpus of 30trial cases in Chinese courtroom where
adversary trial system is in operation.However,collegiate bench
rather than the jury is the one to make a verdict;and
cross-examination of witness is,unless otherwise required,often
replaced by thorough examination of written statements.Drawing
upon the functional grammar on evaluation (Martin &Rose
2003),the theory of discourse and social practice,as well as
some insights from the legal theory,this paper argues,without
refuting power and control as the striking feature,that dialogism
is one of the important nature of lawyer talk.Dialogism of lawyer
talk is found to be mainly manifested in lawyers’employment of
ENGAGEMENTand GRADUATIONresources,together with intertextuality,
in discursively constructing legal facts and giving law reasoning
in trial ,and it is deeply rooted in and motivated by lawyer’
awareness of law as a rational dialogue between legal actors.The
communicative purpose of establishing collegiality with the judge
is another motive for lawyer’s employment of appraisal resources
to negotiate,among the alternative interpretations,for the most
favorable to his side.Dialogism in lawyer talk is in line with
the nature of legal language and serves as evidence for
fossilization of democracy in legal language.This point will have
implications for the discussion of power and control.
1
/2/3/4/
2005年7月18日 |
