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Trosborg1995 Legal Speech Acts

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Journal of Pragmatics 23 (1995) 31-53
Statutes and contracts: An analysis of legal speech acts in
the English language of the law *
Anna Trosborg
The Aarhus School of Business, Department of English, Fuglesangs All~ 4, DK-8210 Aarhus V,
Denmark
Abstract
This paper is concerned with the language used in legal speech acts in legislative texts and
contracts in the field of English Contract Law. The central objects of study are regulative
functions with a particular view to establishing realization patterns of the rhetorical functions
of directive and commissive acts. The findings show that the language of the law characteristically selects patterns of regulatives distinct from, for example, the patterns typically selected
in everyday conversational English. The characteristics of the language of the law can be
interpreted within the adherence to legal institutions, as well as in terms of the face redress
required by the socio-pragmatic situation.
1. Background
The field of legal language within the written medium is unique with regard to
distinctive lexical features, such as technical terms, archaic expressions, etc., and it
is renowned for its syntactic complexity, which has given rise to a number of studies of these aspects (see, e.g. Danet, 1985: 278-287). However, with the exception
of a few studies (e.g. Kurzon, 1986; Werther and Helmersen, 1989), little attention
has been given to pragmatics and politeness in written legal discourse.
In the field of pragmatics (including work on politeness phenomena), research has
been concerned primarily with oral discourse, often based on non-sequential hypothetical data, and very few studies are concerned with pragmatics and politeness in
written discourse (see, e.g. Myers, 1989; Pilegaard, 1990).
This paper presents a pragmatic study of a highly specialized discourse, viz. the
language of authentic legislative texts and contracts, which are analyzed for sociopragmatic occurrence and pragmalinguistic realization of regulative acts. Politeness
is discussed within a consideration of the imposition of regulative acts.
This research has been financed partly by The Danish Research Council for the Humanities and I
would like to express my gratitude for their support. The article is based on my findings published in
preliminary versions as Trosborg (1991) and Blom and Trosborg (1992).
0378-2166/94/$07.00 © 1994 Elsevier Science B.V. All rights reserved
SSDI 0378-2166(94)00034-C
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A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
1.1. The language of the law
'The language of the law' (to be distinguished from other uses of legal language)
is used here as the specific term referring to language as realized specifically in legal
documents, i.e. texts covered by the scope of statute law and common law, l namely
(i) legislation, and (ii) simple contracts and deeds, respectively.
Language, central to human affairs, assumes a particularly critical role in law. In
fact, in a very basic sense, law would not exist without language. There are two primary functions of law: one is the ordering of human relations, the other the restoration of social order when it breaks down (see, e.g. Danet, 1985). With regard to the
former, the function of the law is two-fold: regulative and constitutive.
When 'laying down the law', each statute is preceded by what is known as the
'enacting formula'. In Britain, the enacting formula, the so-called 'promulgation formula', usually has the following form:
BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority
of the same, as follows: (Minors' Contract Act 1987)
The successful enactment of the law (by means of the promulgation formula) is a
necessary condition for 'laying down the law'. In fact, this feature marks the act in
question as a 'declaration' and is the condition on which a statute is effectuated.
Likewise, documents like contracts, deeds and wills must be written in the appropriate linguistic formula and properly signed to be legally valid.
In speech act terms, the enacting formula, which is an explicit performative containing the performative verb to enact, establishes the illocutionary force of the
whole text, viz. its macro-function (cf. the notion of a 'master speech act' employed
by Fotion, 1971). The promulgation formula constitutes the performative part of the
act, while the collection of rules makes up the propositional content. Within this
interpretation, constitutive rules also function as regulative acts.
Contractual communication is unique in that the relative intentions of the parties
are expressed onto print by the assistance of an intermediary filter - someone who is
learned in the law - with a particular reference to the legislative limitations - the
contractual basis - and with a view to the dispute-settling institution: the courts of
justice.
The distribution of roles is fixed, in that the parties to a contract are designated a
'title' according to the role they play, e.g. principle/agent, seller/buyer or franchisor/franchisee; they verify and witness the agreement by their signature, and thus
approve the contents of the contract.
The relationship between the two parties of a contract is, in principle, symmetrical, as both parties have something of interest to the other party ('promise' and 'consideration'). The symmetrical relationship is in contrast to the asymmetrical rela-
English contract law derives mostly from common law rules, i.e. unwrittenrules not found in statutes.
The statutes derive from Haisbury's Statutes.
A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
33
tionship which exists between the legislative power and the citizens, in which case
the former has the authority to make rules for citizens to obey in order to maintain
law and order.
An empirical question to be answered in this connection is whether this difference
in authority results in a difference, for example in directness levels, between the two
kinds of the law, i.e. between the language used in legislation compared to the language employed in private law (contracts and deeds).
1.2. Communicative function: Regulative speech acts
Language is critical in regulating human behaviour. For the specific purpose of
constructing statutes and contracts, language is used as a means of 'ordering human
relations', i.e. language is used with a 'regulative function'.
In his taxonomy of illocutionary acts, Searle (1976) outlines two major categories
of regulative acts: directives and commissives, with the same 'direction of fit'
('world-to-words'), the illocutionary point of which is the speaker's intention to regulate the world, as opposed to, for example, representative speech acts where the
words are adjusted to match the world ('words-to-world').
Establishing classificatory kinship between requests and promises would simplify
Searle's taxonomy. However, in his taxonomy the two categories are different:
"whereas the point of a promise is to commit the speaker to do something (and not necessarily to try to
get himself to do it), the point of a request is to try to get the hearer to do something (and not necessarily to commit or obligate him to do it)." (1976: 12)
Attempts to assimilate the two categories have been made, suggesting either that
promises are really a species of requests to oneself, or that requests place the hearer
under an obligation. Searle, however, accepts neither solution but commits himself
to "the inelegant solution of two categories with the same direction of fit" (see
Searle (1976: 12) for a discussion on this point).
The present framework suggests a classification in which directives and commissives are subclasses of the category of regulative acts.
While legislative power is clearly exercitive, the commitment in contracts can be
established either as an obligation issued by one party over the other (i.e. directive),
or by a party committing him/herself (i.e. commissive).
Within a very general definition, the nature of a contract may be defined as
follows:
" A contract is a legally binding agreement, that is, an agreement imposing rights and obligations on the
parties which will be enforced by the courts." (Redmond, 1979: 19)
Thus the language of simple contracts refers to mutual rights and obligations in relation to 'promise' and 'consideration'.
We shall now consider the 'nature' of the underlying linguistic functions for distributing rights and obligations: directive and commissive acts.
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A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
1.2.1. Directive acts
A directive is an illocutionary act by means of which the addresser tries to influence the behaviour of the addressee. Directives are 'impositive acts' which have
been defined as follows:
"Impositive speech acts are described as speech acts performed by the speaker to influence the intentional behaviour of the hearer in order to get the latter to perform, primarily for the benefit of the
speaker, the action directly specified or indirectly suggested by the proposition." (Haverkate, 1984:
107)
In outlining the terms of statutes and contract, rules are formulated with the intent
of ordering human relations. The law-making body exerts its power on the citizens,
or one party of the contract (e.g. principal, seller, franchiser) imposes a certain
behaviour on the other party (e.g. agent, buyer, franchisee) and vice versa.
A directive is a 'face-threatening act' involving a threat to the addressee's 'negative face', which has been defined as "the want of every 'competent adult member'
that his actions be unimpeded by others" (Brown and Levinson, 1987). An addresser
issuing a directive attempts to exercise power or direct control over the intentional
behaviour of the addressee and in this way intrudes on the right to freedom of action.
The degree with which the addresser tries to impinge on the behaviour of the
adressee is referred to as the 'degree of imposition'. In order to lessen the impact of
the imposition on the addressee, the addresser has recourse to politeness strategies.
The explicitness with which the act to be performed (or not performed in case of
prohibitions) is referred to as the 'directness level' of the directive.
1.2.2. Directness levels of directive acts
When issuing a directive, various options are available to the addresser. Within the
theory of Brown and Levinson (1987), the directive can be expressed 'on record' or
'off record', i.e. with or without explicit directive force, respectively. If the former
option is selected, the addresser can voice the directive with or without face redress
by using mitigating devices.
Table 1 provides a list of directives used as an instrument for analyzing ordinary
spoken and written English. 2 In the case of unmodified imperatives and unhedged
performative utterances, the directive is phrased explicitly without face redress and
serves as an order. Likewise modals like shall and must are employed to impose a
high degree of obligation on the addressee. Face redress, on the other hand, can be
obtained by means of conventionally indirect directives, either in the form of (i)
'hearer orientated' questions concerning the ability/willingness of the addressee to
perform a certain action, e.g. by the use of the modals can/could or will/would, or by
'permission statements' through the application of the modals may/might or
can/could, or (ii) 'speaker based' want-statements expressing the addresser's desires
and needs. Finally, directives can be performed indirectly with no explicit marker of
the impositive intent (i.e. 'off record').
2 For previous classifications of directives, which build on Austin (1962) and Searle's (1969, 1976)
theories, see, e.g. Brown and Levinson (1987), Blum-Kulka et al. (1989: 273ff.).
A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
35
Table 1
Hierarchy of strategies for issuing directives. Request strategies presented at levels of increasing directness. Situation: Sender's request to borrow Receiver's car
Requests without explicit illocutionary force
1. Hints
(mild)
(strong)
I have to be at the airport in half an hour.
My car has broken down.
Will you be using your car tonight?
II. Conventionally indirect requests:
speaker-based conditions
2. Ability
Willingness
Permission
3. Suggestory formulae
Could you lend me your car?
Would you lend me your car?
May I borrow your car?
How about lending me your car?
IlL Conventionally indirect requests:
Hearer-based conditions
4. Statement of wishes
5. Statement of desires and needs
I would like to borrow your car.
I want/need to borrow your car.
IV. Requests with explicit illocutionary force
6. Statement of obligation
7. Performatives (hedged)
(unhedged)
8. Imperatives
9. Elliptical phrases
You must/have to lend me your car.
I would like to ask/require you to lend me your car.
I ask/require you to lend me your car.
Lend me your car.
Your car (please).
1.2.3. Commissive acts
According to A u s t i n (1962: 156) " t h e whole point of a c o m m i s s i v e is to c o m m i t
the speaker to a certain course of a c t i o n " . O b v i o u s examples are utterances including the verbs promise, vow, pledge, covenant, contract, guarantee, embrace and
swear.
Adopting A u s t i n ' s categories for further development, Searle takes over A u s t i n ' s
category of c o m m i s s i v e s in its original form with the only objection that certain
verbs included by Austin according to Searle " d o not belong in this class at a l l "
( 1 9 7 6 : 1 1 ) . He refers to verbs such as shall, intend and favour.
Searle repeats that:
"Commissives then are those illocutionary acts whose point is to commit the speaker (again in varying
degrees) to some future course of action." (ibid.)
The sincerity condition is intention. The propositional content always refers to the
carrying out of some future action on the part of the speaker.
The speaker's c o m m i t m e n t to carry out the act described in the proposition can be
expressed through an explicit performative verb or by means of the modal verb will
f u n c t i o n i n g as an implicit performative:
The Distributor promises/covenants/guarantees ...
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A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
Each party hereby agrees that it will ...
Commissives and directives differ as regulative acts with regard to imposition.
Per definition (as specified by the 'felicity conditions' of promises), promises are in
the interest of the hearer (and at the cost of the speaker) and belong to the category
of "convivial acts" (see Leech, 1983: 104). The speaker can only promise 'felicitiously' if the intended act is in the interest of the hearer. An explicit statement of the
promise is therefore desirable, and indirectness and/or hedging would only weaken
the obligation and make it legally invalid.
In contrast, directives are issued for the benefit of the speaker and at the cost of
the hearer; they are "competitive acts" (Leech, 1983: 104) to be adjusted in communication relative to interlocutor and communicative intention.
2. Empirical design
2.1. The data
The data of investigation have been drawn from a corpus of legal language within
the specific field of contract law comprising three individual corpora (Danish-English-French). Each corpus consists of 1 million running words and covers six types of
text relevant to the subject: Statutes, rules and regulations, travaux prtparatoires,
judgments, contracts, legal textbooks, articles in law journals. The data subjected to
analysis are the compiled statutes, rules and regulations (6,000 words) and the compiled simple contracts (163,500 words) of the English corpus. For a more detailed
description of the corpora, see Dyrberg et al. (1988).
2.2. Quantitative and qualitative methods
The purpose of the analysis was to isolate all occurrences of regulative acts and
analyze the pragmalinguistic realization patterns of directives employed to express
the socio-pragmatic functions of laying down the law, and of the directive and commissive acts by means of which the parties to a contract are committed.
All legislative texts were subjected to manual analysis, while a combination of
computational analysis and manual tagging was used for examining the contracts for
the relevant speech acts.
By applying software, it was possible to quantify lexical items and modal verbs which
were identified beforehand as possible indicators of directives and commissives. However, not all such potential indicators are employed for the sole purpose of realizing these
functions. Neither was it possible to construct a full set of items which could be trusted
to constitute an absolute and inclusive set covering all regulatives used in the data.
Prior to calculation, manual tagging was performed on all potentially ambiguous
illocutionary force indicators, so that only indicators of the categories in question
were counted. Items unambigously signalling the identified categories were compiled without prior tagging.
A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
37
For a detailed presentation of the quantitative methods employed, see Blom and
Trosborg (1992).
2.2.1. Categories of regulative acts
In the following, the classificatory framework outlined in 1.2.2 (see Table 1) is
adapted for the purpose of analyzing statutes and contracts, and crucial aspects are
discussed.
The unmarked category relates to 'constitutive rules'. Permission is included in
the category 'rights', which also comprises 'assignment of benefit' and 'limitation of
liability'. The scale is enlarged with a fifth category of 'promises. As the analysis of
contracts revealed an empty slot for Category III (speaker-based conditions), this
category was exempted from the classification.
2.2.1.1. Realization of constitutive rule. Identification of constitutive rules presented problems particularly difficult to solve. These rules are made up of statements
with legal effect, but the set of possible verbal items is in principle unlimited with no
discrete or easily identifiable items.
An attempt was made to build on previous examples from the analysis of the
statutes extended with the items identified in a smaller number of contracts (7 contracts were analyzed initially for this purpose). Furthermore, a vocabulary test was
run on the computer listing all items ending in s. These items were then analyzed for
their ability to function as the verb of a constitutive rule. The drawbacks of using the
items compiled in this way are several. For one thing, verbs with plural subjects, and
verbs occurring in the past tense would be left out. For another, it was not possible
to distinguish the number of constructions with the copula be + adjective as possible
fillers of the verb slot.
As it was impossible to construct a full set of items which could be trusted to constitute an absolute and inclusive set of indicators of constitutive rules, manual tagging of this category seemed to be the only possible solution. However, as the corpus was shown to be a homogeneous body of text, it was possible to rely on an
analysis of part of the text as being representative of the text as a whole. 3 By means
of forward simulation, the results based on an analysis of a limited part of the text
(50% in this study) could then be multiplied so that it added up to 100%. 4
2.2.1.2. Forms and patterns of realization of negating elements. In order to design
an adequate domain-specific taxonomy, it has been necessary to establish the pattern
of realization for negations, because the pragma-semantic environment is altered by
the presence of such elements, for instance 'obligation' becomes 'prohibition' (e.g.
shall ~ shall not), 'permission' becomes 'prohibition' (e.g. may --4 may not), or
3 A KWIC ('key word in context') analysis, i.e. a concordance consisting of indexed and alphabetized
lexical units was performed.
4 The obtained percentages based on manual analysis of 50% of the data for constitutive rules were
very similar to the results obtained by forward simulation of the results of the 7 contracts analyzed initially, which provides good reason to believe that the homogeneity hypothesis holds true.
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A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
want~need becomes 'permission' (need --4 need not). However, as negating elements
do not exclusively appear as verbal phrase modifiers, it has been necessary to map
out their patterns and forms of realization.
The negating elements appear in the corpus predominantly as follows: (i) neither
functioning as either a conjunction or a determiner, (ii) nor functioning as a conjunction, (iii) no functioning as a determiner, (iv) the particle not, (v) nothing functioning as an NP-head.
The patterns of realization seem to follow an overall system: (i) neither occurs
either as a conjunction with nor, coordinating two or more NPs (neither the agent
nor the manager nor any o f their .:.), or as a determiner for either NP (neither party
shall ...) or as a postmodifier of elliptical NPs (neither o f us shall be liable f o r ...),
(ii) nor occurs in the following environments: (a) neither - nor, (b) not [VP] - nor
[VP], (c) nothing - nor, (d) none o f - nor - nor ... (iii) no modifies (a) NP-subject
(no tenancy is intended to be created thereby), (b) subjective complement NP (this
agreement shall be an agreement o f no f i x e d length), (c) subjective complement with
elliptical NP (the guarantee shall be o f no further effect), (d) object (the officer shall
have no entitlement to ...), (e) initial PP (in no case will the underwriters be liable to
pay ...), (f) non-initial PP (the rights and obligations o f the issuers shall in no way
diminish ...), (iv) not typically modifies VP, (v) nothing always occurs as NP-subject, consequently the following example is prototypical for scores in this respect:
nothing in this agreement shall constitute ...
2.2.1.3. The sub-category 'assignment o f benefit'. The category 'assignment of
benefit' is semantically related to the sub-category 'permission', however there is a
subtle difference in that permissions are always granted by a sender whereas this is
not necessarily the case for benefits, although, of course, both permissions and benefits contain a privilege, which frequently involves an option to make use of such
priviledge on the part of the 'beneficial party' not acting in agreement with the
propositional action uttered in the conditional clause, compare:
If any such consent is not granted at least five working days before contractual completion date [...],
either party may rescind the contract by notice to the other. (4-054)
The Grantor shall have the right at his discretion [...] to refuse to accept the purchase price for the Sale
Shares and to cancel the rights given by this agreement if the Purchaser fails to tender the purchase price
for the Sale Shares within 14 days of [...] the assessing of the price of the Sale Shares. (4-025)
'Assignment of benefits' is a sub-category of the receiver-based conditions and may
be realized with or without negation.
The analysis of contractual discourse is problematic, because contrary to, for
example, fiction, in which supplementary 'stage directions' function as a means to
differentiate between senders and receivers ('she thought', 'he said', etc.), it is not
always clear from the context exactly who is actually addressing whom in a contract.
This may be exemplified by the following statement: 'The Agent shall not be
responsible f o r ...'.
A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
39
The utterance may be open to two interpretations: (a) in the s e n d e r ' s perspective
(the sender b e i n g 'the A g e n t ' ) the utterance b e c o m e s an order: 'You shall see to it
that I am not held responsible f o r ...' in which case the speech act involves an
a s s i g n m e n t of a right; and (b) in the r e c e i v e r ' s perspective (the sender not being 'the
A g e n t ' ) the utterance is more like a c o m m i s s i v e speech act: '1 shall see to it that you
are not held responsible for ...', i.e. a promise or a recognition of the receiver's right.
Therefore the following solution is offered: the utterance listed under ' a s s i g n m e n t
of benefits' involves a dual function; it distributes a right to w h o m e v e r is entitled to
it and a latent duty on the party not entitled to it - irrespective of which party makes
the utterance. A p r a g m a - s e m a n t i c a l l y related version of this sub-category is 'limitation of liability', in which case the right assigned is some kind of debt reduction,
restriction as to c o m m i t m e n t , etc. (e.g. neither party shall be liable f o r ...).
The modal will gives rise to similar problems. Admittedly the listing of will.under
the ' o b l i g a t i o n ' sub-group is debatable, as the speech act made may be a c o m m i s s i v e
or a directive. The u n d e r l y i n g speech act implies that one party is committed, while
another party gains an advantage. The solution chosen enables me to restrict the category of promises to structures with performative verbs.
2.2.1.4• Promises. The performative verbs typically e m p l o y e d with c o m m i s s i v e
intention are promise, covenant, undertake, commit, offer, acknowledge, agree, consent. In agreement with Searle (1976: 11), verbs like intend and favour (which are
suggested by A u s t i n as peformatives) are not treated as performatives, as intentions
and favours are ' w e a k ' expressions unable to c o m m i t the speaker legally. Shall is
treated as an implicit performative, though generally with a directive function. The
modal will functions as an implicit performative expressing the addresser's obligation to carry out the act described in the proposition. Table 2 summarizes the categories used as an instrument of classification for contracts.
Table 2
Domain-specific hierarchy of strategies for issuing regulatives. Regulative strategiesfor simple
contracts presented at levels of increasing directness
I.
Constitutives unmarked
II. Permission
Rights
III. Obligation
Prohibition
Allow[-] • can. could, grant[-] • may • might - need not • [VP] no obligation - offer[-]
(a) shall/will ('benefit') [+negation]
(b) shall/will ('limitation of liability') l+negation]
are to • has to • is to • must • obligate ' obliged to - shall • should • will
can [negation] • may [negation] - shall [negation] • will [negation]
Performatives demand[-], order[-] • request [-]
IV. Promises
accept[-], acknowledge[-] ' agree[-] • certify[-] • commit[-] • confirm[-] • covenant[-]
• declare[ - guarantee[-] • promise[-] - represent[-] • understand[-] . undertake[-] •
warrant[-]
[ ]: symbol for syntactic item
{ } : symbol for semantic item denoting stated value or equivalent
: symbol for morphological item
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2.2.2. Modals with multiple functions
In the case of modal verbs which occur with dual/triple functions, manual analysis was required. This applies to the following modals: shall, will, may, can and
must. In addition to being used with 'mandatory' force (signalling obligation), shall
is also used with future reference and in predictions. Similarly, the modal will may
be used to express either obligation or prediction. As is well known, the modals may
and can express permission or possibility, but can is also employed to express ability. Must may express obligation (deontic use), or it occurs to express 'logical
neccessity'.
Each occurrence of these modals had to be analyzed, so that only instances
expressing the directive and commissive categories subjected to analysis were
counted.
2.2.3. Indicators in modifying clauses
Indicators may occur in head acts signalling a commissive or a directive act, or
they occur in arguments functioning, for example, as a condition (or restriction) on
the commissive, a presupposition of the directive, etc. Only indicators signalling the
illocutionary functions of directives were scored. The following example serves as
an illustration:
The licence to reside in the premises [...] shall terminate automaticallywithout any notice if the officer
shall cease to reside in the premises or upon terminationof this Agreementfor whatevercause. (4-006)
Only the structure with the shall in italics functions as a directive; the second
shall (in the subordinate clause) is used as a condition on the illocution signalled in
the main clause.
3. The use of regulatives in English Contract Law (statutes, rules and regulations)
The corpus of legislative texts were analyzed for the occurrence of directive acts.
Few performatives were used to indicate directive force. Instead, modal auxiliaries
were used as 'implicit performatives'. The results (see Table 3) show a predominance of direct acts (Cat. IV, statements of obligation and prohibition), which
amounted to 47.6% of the total number of observed strategies. Unmarked strategies
(Cat. I, constitutive rules) were employed frequently (39.3%). In Cat. II, conventionally indirect strategies, only permission statements were observed (13.1%), while
strategies querying preparatory conditions (hearer's ability/willingness) were noticeably absent. Speaker-based strategies expressing wishes and desires (Cat. III) were
not observed either. In the following, the realization types of directive strategies
observed in the statutes are discussed and exemplified.
A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
41
Table 3
Distribution of categories of directives in percent
I.
Unmarked strategies
Constitutive rules
39.3%
H. Conventionally indirect strategies (hearer-oriented)
Permission:
may
can
needn't
other
8.9%
1.2%
0.6%
2.4%
13.1%
Total
IlL Conventionally indirect strategies (speaker-based)
Wishes/desires
0%
IV. Direct strategies
Prohibition:
Obligation:
cannot
shall not
total
shall
are to
should]ought to
other
total
Performatives
Total
8.3%
3.6%
11.9%
21.4%
7.1%
3.0%
2.4%
34.5%
1.2%
47.6%
3.l. Direct strategies
A s is apparent from T a b l e 3, direct strategies (Cat. IV) are the most frequently
used directives in statutes in English Contract Law. Statements o f o b l i g a t i o n
a m o u n t e d to 34.5%, and p r o h i b i t i o n s to 11.9%. Imperatives were not o b s e r v e d at all,
and only a few p e r f o r m a t i v e s were observed.
3.1.1. Performative statements
As m e n t i o n e d above, the initial enacting formula acts as a ' p e r f o r m a t i v e ' while the
text itself functions as the proposition. In addition to the enactment formula involving
the verb enact, the p e r f o r m a t i v e verb repeal occurred as an explicit performative:
The Infants Relief Act 1974 and the Betting and Loans (Infants) Act 1892 are hereby repealed (in accordance with section I of this Act) (Minor's Contracts Act 1987)
The verb declare m a y also be used as an explicit p e r f o r m a t i v e in British statutes,
but in the present data this verb was not o b s e r v e d with p e r f o r m a t i v e use. The verbs
authorize, entitle and a m e n d are used p e r f o r m a t i v e l y in A m e r i c a n statutes (Kurzon,
1986: 24). In British statutes, these verbs do not hold the status o f performatives, but
they were o b s e r v e d in the p r o p o s i t i o n s o f specific acts serving as constitutive rules.
N o p e r f o r m a t i v e statements i n v o l v i n g the p e r f o r m a t i v e verbs o f ordering (order,
command, request, etc.) were observed.
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3.1.2. O b l i g a t i o n
T h e m o d a l shall t y p i c a l l y e x p r e s s e s o b l i g a t i o n in l e g a l a c t s ( 2 1 . 4 % ) . S h a l l is u s e d
to e x p r e s s t h e i l l o c u t i o n a r y f o r c e o f a n o r d e r . T h e a d d r e s s e r - t h e l e g i s l a t u r e i n s t r u c t s t h e a d r e s s e e to d o X. T h e a d d r e s s e e h a s n o c h o i c e b u t to o b e y :
Where a person has entered into a contract after misrepresentation has been made to him by another
party thereto and as a result he has suffered loss, then, if the person making the misrepresentation would
be so liable to damages in respect thereof had the misrepresentation been made fraudulently, that person
shall be so liable not withstanding that the misrepresention was not made fraudulently, unless he proves
that he had reasonable ground to believe and did believe up to the time the contract was made that the
facts represented were true. (Misrepresentation Act 1967)
All sums paid or payable to any party in pursuance of the contract before the time when the parties were
so discharged (in this act referred to as 'the time of discharge'), shall in the case of sums so paid, be
recoverable from him as money received by him for the use of the party by whom the sums were paid,
and, in the case of sums so payable, cease to be so payable: ... (Law Reform (Frustrated Contracts) Act
1943)
In t h e e x a m p l e s a b o v e t h e m o d a l v e r b shall h a s b e e n e m p l o y e d to s t a t e o b l i g a tions of the court and of a party of the contract, respectively. Note that the human
p a r t y h a s b e e n d e f o c a l i z e d i n t h e l a t t e r e x a m p l e (All s u m s ... shall ... be r e c o v e r a b l e
f r o m him).
T h e m o d a l shall is a l s o u s e d w i d e l y in d i r e c t i v e s to s t a t e r u l e s a c c o r d i n g to w h i c h
the law in question operates without mentioning an agent:
Nothing in this section shall be taken to prejudice any other remedy available to the plaintiff.
Contracts Act 1987)
(Minors'
T h e u s e o f t h e q u a s i - m o d a l to be to is o b s e r v e d w i t h a h u m a n a g e n t :
Subject to this, it is for those claiming that a party does not deal as consumer to show that he does not.
(Unfair Contract Terms Act 1977)
b u t t h i s v e r b is e m p l o y e d m o s t f r e q u e n t l y w i t h n o n - a n i m a t e s u b j e c t s (cf. t h e u s e s o f
shall e m p l o y e d i n c o n s t i t u t i v e s t a t e m e n t s w i t h n o n - h u m a n s u b j e c t s ) :
... goods are to be regarded as 'in consumer use' when a person is using them, or has them in his possession for use, otherwise than exclusively for the person of a business; and ...
A contract term is to be taken - .,. (Unfair Contract Terms Act 1977)
T h e m o d a l s m u s t a n d h a v e to, w h i c h are t y p i c a l l y u s e d to e x p r e s s o b l i g a t i o n o u t side l e g a l c o n t e x t s , w e r e r a r e l y o b s e r v e d . I n fact, d i r e c t i v e s w i t h m u s t d i d n o t o c c u r
at all, a n d h a v e to w a s o n l y o b s e r v e d in t h e f o l l o w i n g e x a m p l e r e l a t i n g to ' E f f e c t o f
breach':
Where for reliance upon it a contract term has to satisfy the requirement of reasonableness, it may be
found to do so ... (Unfair Contract Terms Act 1977)
A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
43
T h e v e r b s ought to and should w e r e r a r e l y o b s e r v e d as i l l o c u t i o n a r y f o r c e i n d i c a tors o f d i r e c t i v e s , w h i c h c a n b e e x p l a i n e d w i t h r e f e r e n c e to the ' w e a k n e s s ' w i t h
w h i c h o b l i g a t i o n is e x p r e s s e d :
In relation to a notice (not being a notice having contractual effect), the requirement of reasonableness
under this Act is that it should be fair and reasonable to allow reliance on it, having regard to all the circumstances obtaining when the liability arose or (but for the notice) would have arisen. (Unfair Contract Terms Act 1977)
M o r a l duty, r a t h e r than l e g a l o b l i g a t i o n , is g e n e r a l l y c o n v e y e d b y the t w o m o d a l s in
question.
Past t e n s e m o d a l s t y p i c a l l y o c c u r s p e c i f y i n g the c o n d i t i o n s u n d e r w h i c h a g i v e n
act holds, c o m p a r e the use o f could, should, and wo u l d in the f o l l o w i n g e x a m p l e
w i t h shall s i g n a l l i n g o b l i g a t i o n :
Where by reference to a contract term or notice a person seeks to restrict liability to a specified sum of
money, and the question arises (under this or any other Act) whether the term or notice satisfies the
requirement of reasonableness, regard shall be had in particular (but without prejudice to subsection (2)
above in the case of contract terms) to (a) the resources which he could expect to be available to him for the purpose of meeting the liability
should it arise; and
In a case where - ... a person is not precluded by this Act from excluding or restricting liability for loss
or damage, being loss or damage for which the provisions of the Convention would, if they had the force
of law in relation to the contract, impose liability on him. (Unfair Contract Terms Act 1977)
3.1.3. Prohibitions
In a d d i t i o n to s t a t e m e n t s e x p r e s s i n g o b l i g a t i o n the r e g u l a t i o n o f b e h a v i o u r c a n
take p l a c e b y i s s u i n g p r o h i b i t i o n s . P r o h i b i t i o n s i n d i c a t e d b y shall not o c c u r w i t h
n o n - h u m a n subjects, as, for e x a m p l e , in the f o l l o w i n g statute r e l a t i n g to n e g l i g e n c e
liability:
The following enactments shall not apply to any contract made by a minor after the commencement of
this Act - ...
Where - ... the guarantee shall not for that reason alone be unenforceable against the guarantor ...
(Unfair Contract Terms Act 1977)
or a h u m a n b o d y is a d d r e s s s e d :
In considering whether any sum ought to be recovered or retained under the foregoing provisions by any
party to the contract, the court shall not take into account any sums which ... (Law Reform (Frustrated
Contracts) Act 1943)
W h i l e the m o d a l v e r b m a y is t y p i c a l l y u s e d to i n d i c a t e p e r m i s s i o n stating the
rights o f l e g a l b o d i e s and c i t i z e n s (see b e l o w ) , the m o d a l v e r b can m o s t l y o c c u r s in
n e g a t e d f o r m stating w h a t c a n n o t take place. T h e s e acts are also i n c l u d e d as t h e y
s e r v e to r e g u l a t e b e h a v i o u r :
44
A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
A person dealing as consumer cannot by reference to any contract term be made to indemnify another
person (whether a party to the contract or not) in respect of liability that may be incurred by the other for
negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness. (Unfair Contract Terms Act 1977)
O n l y in s o m e c a s e s are the parties o f the c o n t r a c t e x p l i c i t l y m e n t i o n e d . In the
r e m a i n i n g i n s t a n c e s in the statute the s t a t e m e n t s o c c u r in the p a s s i v e f o r m foreg r o u n d i n g a n o n - h u m a n o b j e c t o f l e g i s l a t i o n , as, for e x a m p l e , ' l i a b i l i t y ' in the following example:
Liability for breach of the obligations arising under section 2 of the Supply of Goods and Services Act
1982 (implied terms about title etc. in certain contracts for the transfer of property in goods) cannot be
excluded or restricted by references to any such term. (Unfair Contract Terms Act 1977)
3.2. Permission
P e r m i s s i o n g e n e r a l l y issues f r o m s o m e authority, w h i c h is o f t e n the s p e a k e r
( a d d r e s s e r ) - the p e r f o r m e r o f the s p e e c h act. In l e g i s l a t i o n , the a u t h o r i t a t i v e s o u r c e
is the legislature, w h i c h g r a n t s p e r m i s s i o n to the b o d y in q u e s t i o n to p e r f o r m a certain act; it d o e s not o r d e r the b o d y to d o so (as in the c a s e o f s t a t e m e n t s o f o b l i g a tion), but g i v e s it d i s c r e t i o n to do so. S t a t e m e n t s o f p e r m i s s i o n m a y s e r v e to establish the right o f l e g a l institutions, s u c h as the court, the arbitrator:
In estimating, for the purposes of the foregoing provisions of this section, the amount of any expenses
incurred by any party of the contract, the court may without prejudice to the generality of the said provisions, include such sum as appears to be reasonable in respect of overhead expenses and in respect of
any work or services performed personally by the said party. (Law Reform (Frustrated Contracts) Act
1943)
In the f o l l o w i n g e x a m p l e , n o t e also the e x c e s s i v e n u m b e r o f c o n d i t i o n s to be fulf i l l e d for the act to h o l d (where, if, ought to, would).
Where a person has entered into a contract after a misrepresentation has been made to him otherwise
than fraudently, and he would be entitled, by reason of the misrepresentation, to rescind the contract,
then, if it is claimed, in any proceedings arising out of the contract, that the contract ought to be or laas
been rescinded the court or arbitrator may declare the contract subsisting and award damages in lieu of
rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that
rescission would cause to the other party. (Misrepresentation Act 1967)
C o n s i d e r also an e x a m p l e i n v o l v i n g d e l e g a t e d l e g i s l a t i o n :
For the purpose of subsection (3)(a), the values which shall be taken to be the official values in the
United Kingdom of the amounts (expressed in gold francs) by reference to which liability under the provisions of the Convention is limited shall be such amounts in sterling as the Secretary of State may from
time to time by order made by statutory instrument specify. (Unfair Contract Terms Act 1977)
In the f o l l o w i n g , p e r m i s s i o n e x t e n d s to the rights to set up c o n t r a c t s w h i c h need not
b e u n d e r seal:
A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
45
1 Cases where contracts need not be under seal
(1) Contracts may be made on behalf of any body corporate, wherever incorporated, as follows: (a) a contract which if made between private persons would be by law required to be in writing,
signed by the parties to be charged therewith may be made on behalf of the body corporate in writing
signed by any person acting under its authority, expressed or implied, and
(b) a contract which if made between private persons would by law be valid although made by parol
only, and not reduced into writing, may be made by parol on behalf of the body corporate by any person acting under its authority, expressed or implied. (Corporate Bodies' Contracts Act 1960)
Statements o f p e r m i s s i o n only a m o u n t e d to 13.1% o f the total n u m b e r o f o b s e r v e d
directives.
3.3. Constitutive rules
Statements which do not include p e r f o r m a t i v e verbs, or m o d a l s which function as
implicit performatives, m a y still serve the p u r p o s e o f laying d o w n the law. Sentences
used to e x p l a i n or define expressions and w o r d s in the statute or to supply information concerning the a p p l i c a t i o n o f the statute, or part o f it, are part o f constitutive
rules (cf. Kurzon, 1986: 23). E x a m p l e s t y p i c a l l y involve verbs such as to apply, to
extend, to mean, to affect, w h i c h are not p e r f o r m a t i v e verbs. Statements with the
verbs impose, purport to, include, exclude, fall within, come into force, etc., were
also o b s e r v e d as verbs o f constitutive statements. S o m e e x a m p l e s are given b e l o w :
In the case of both contract and tort, sections 2 and 7 apply (except where the contrary is stated in section 6(4)) only to business liability, that is liability for breach of obligations or duties arising - ...
The liabilities referred to in this section are not only the business liabilities defined by section 1(3), but
also include those arising under any contract of sale of goods or hire-purchase agreement.
A person is not bound by any contract term prejudicing or taking away rights of his which arise under,
or in connection with the performance of, another contract, so far as those rights extend to the enforcement of another liability which this Part of this Act prevents that other from excluding or restricting.
A constitutive rule without p e r f o r m a t i v e m a r k i n g (explicit or implicit) was the
single strategy w h i c h was used most frequently (39.3%).
4. The use of regulatives in English contracts
T h e corpus o f contracts was a n a l y z e d for the occurrence o f regulative acts. Perf o r m a t i v e s were not used to indicate directive force. Instead, m o d a l auxiliaries were
used as ' i m p l i c i t p e r f o r m a t i v e s ' . The results (see T a b l e 4) show a p r e d o m i n a n c e o f
direct acts (Cat. III, statements o f o b l i g a t i o n and prohibition), which a m o u n t e d to
46.3% o f the total n u m b e r o f o b s e r v e d strategies. U n m a r k e d strategies (Cat. I, constitutive rules) were e m p l o y e d frequently (22.7%). In Cat. II, c o n v e n t i o n a l l y indirect
strategies were only e x p r e s s e d by m e a n s o f p e r m i s s i o n statements (5.8%); besides,
' a s s i g n m e n t o f b e n e f i t ' (6.6%) and ' n e g a t e d limitation o f l i a b i l i t y ' (3.4%) occurred.
Strategies q u e r y i n g p r e p a r a t o r y conditions ( h e a r e r ' s a b i l i t y / w i l l i n g n e s s to carry out
46
A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
Table 4
Distribution of categories of regulatives in per cent
1.
Constitutives
Statements:
Predictions:
H.
lexical main verb
be-constructed
shall
shall
will
10.7
5.5
3.2
3.2
0.2
19.4
3.3
22.7
Rights
Permission
lexical
0.2
may
can
5.4
Assignment of benefits:
Negated assignment:
Liability:
Negated liability:
0.2
6.6
0.6
1.1
3.5
5.8
11.8
17.6
IlL Obligation
Prohibition:
Obligation:
may~can + neg
shall + neg
will + neg
are to
must
Shall
lexixal
will
IV. Promises
0.3
6.0
0.5
0.7
0.6
38.0
0.2
4.0
9.5
6.8
39.5
4.0
50.3
9.5
the desired act) and speaker-based strategies expressing wishes and desires, which
occur frequently in everyday conversations (Trosborg, 1991), were noticeably
absent.
Commissive acts were realized by means of performatives explicitly expressing
promises (9.5%). Obligation expressed by implicit performatives realized by the
modal w i l l amounted to 4%.
The strategies observed in contracts are exemplified below. As the categories
overlap with those observed for statutes, detailed comments are not provided.
4.1. D i r e c t d i r e c t i v e s
As is apparent from Table 4, direct strategies (i.e. Cat. III) are the most frequently
used directives in English contracts. Statements of obligation amounted to 39.5%,
and prohibitions to 6.8%. Imperatives and performatives were not observed.
4.1.1. O b l i g a t i o n
in order to express obligation in legal contracts, the modal s h a l l is used almost
exclusively (38.0%). S h a l l is used to express the illocutionary force of an order. The
addresser - one party to the contract - directs the other party to do X. By signing the
contract, the addressee undertakes the obligation:
A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
47
Commission shall be paid on a quarterly basis and shall be based on the previous quarter's nett sales.
(4-001 )
Employees shall work such overtime as the Company from time to time thinks necessary according to
the needs of its business. (4-014)
A s in (4-001), the
sivization i n v o l v i n g
T h o s e are p r o m i n e n t
face redress in o r d e r
illocution is frequently constructed b y the application o f pasagent suppression, and/or b y the use o f n o n - h u m a n subject.
features o f the legal register, and m a y be e x p l a i n e d in terms o f
to reduce the face-threat i n v o l v e d in issuing a directive.
4.1.2. Prohibitions
In the regulation o f b e h a v i o u r b y m e a n s o f prohibitions, the m o d a l shall is used
a l m o s t e x c l u s i v e l y (6.0% out o f 6.8% o f the strategies o b s e r v e d ) :
the Representative shall not be entitled to enter into any contract or obligation on behalf of the Company
without the express written consent of the Company being first obtained. (4-016)
Nothing in this Clause shall confer any right upon the Distributor to return Products purchased by it pursuant hereto or to refuse or delay payment for them. (4-068)
The officer shall have no entitlement to any further period of holiday with or without remuneration
unless expressly agreed between the company and the officer. (4-006)
The three e x a m p l e s reflect s o m e o f the different types o f negation w h i c h were m e n tioned in 2.2.1.2.
4.2. Rights
4.2,1. Permission
In contracts, a s y m m e t r i c a l relation holds b e t w e e n the two parties, either o f which
is able to grant p e r m i s s i o n to the other party:
The Hirer may determine the hiring at any time by giving one month's previous notice in writing expiring on one of the days appointed for payment of rent (4-015)
The Owner hereby grants to the Distributor [...] the sole and exclusive right to licence, sub-licence and
generally to market, distribute and support the Software (4-047)
The company hereby gives the officer permission to reside with his wife and children in the dwellinghouse and premises [...] as the company's representative (4-006)
Statements o f p e r m i s s i o n a m o u n t e d to 5.8% o f the total n u m b e r o f strategies.
4.2.2. Assignment o f benefit~liability
T h e e x a m p l e s b e l o w are linguistic manifestations o f the subcategories (i) assignm e n t o f benefits, (ii) n e g a t e d a s s i g n m e n t o f benefits, (iii) limitation o f liability, and
(iv) n e g a t e d limitation o f liability, r e s p e c t i v e l y :
48
A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
the Company shall have power [...] to carry on its business alone or in association with any one or more
persons (whether natural or legal) or by any one or more subsidiary companies (4-026)
The duty to disclose contained in this clause shall not impose on either party any obligation to develop
any such modification or improvement (4-027)
The Carrier shall be relieved of its obligation to perform the Contract to the extent that the performance
thereof is prevented by failure of the Trader (4-038)
no liability whatsoever shall be accepted by the Contractor for any alterations or additions carried out in
contravention of this Clause (4-059)
4.3. Constitutive rules
Constitutive rules establish the terms of the contract (for example, c o n c e r n i n g liability), and spell out conditions relating to price, date, amount, etc. Furthermore, they
define expressions and terms in the contract or supply information c o n c e r n i n g application of these terms. Examples typically i n v o l v e lexical m a i n verbs such as mean,
apply, include, exclude, and constructions with be + copula.
"ACCIDENT" includes exposure resulting from a mishap to a conveyance in which the Assured is
travelling (4-021)
The Agent is responsible for finding out and notifying in detail of Governmental and other requirements
in the Territory affecting this Agreement (4-018)
Future reference by the use of the modal shall m a y indicate a constitutive spelling
out a rule of the contract with a legal effect.
ANY notice required to be served upon the Owner or Hirer hereunder shall be deemed to be duly served
48 hours after posting if sent by first class recorded delivery post (4-053)
4.4. C o m m i s s i v e s
By m a k i n g a promise a party to the contract c o m m i t s him/herself before the law.
Promises were typically expressed by m e a n s of performative verbs, such as agree,
undertake, acknowledge, warrant, accept:
The Supplier warrants to the Customer that the Equipment marketed by the Supplier is believed to be
free from defects of workmanship and materials (4-057)
The Licensee acknowledges that the copyright in [...] all written, printed and photographed matter supplied by the Grantor under this agreement [...] shall belong to and remain vested in the Grantor (4-027)
The verbs p r o m i s e and covenant were observed but they were not in frequent use.
A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
49
5. Discussing the findings
No detailed comparison of the use of regulatives in legislative texts compared
with the use in simple contracts will be provided. A few comments shall suffice.
In both types of legal documents, the category of direct directives dominates (legislation 47.6%, contracts 46.3%) with mandatory shall as the single most frequently
used sub-category (legislation 21.4%, contracts 38.0%). A higher number of constitutives in statutes (39.3%) compared with contracts (22.7%) reflects the very function in the former of establishing rules and regulations.
Commissives occurred only in contracts. A difference was observed in the use of
explicit performatives in directives compared with commissives. Strategies of the
prototype I hereby order you to do X were rarely observed, neither in statutes, nor in
contracts, whereas strategies of the type I hereby promise to do X amounted to 9.5%
in contracts.
This difference can be explained with reference to the face-threat (see 1.2.1)
involved in the two acts. When trying explicitly to enforce the desired behaviour
(which is for the benefit of the sender and normally at the cost of the receiver) onto
the receiver, the sender openly threatens the requester's right to remain unimpeded.
This explains why explicit performative verbs are avoided.
On the contrary, when issuing a promise, the speaker commits him/herself (and
not someone else) to carry out the act specified in the proposition, but does not
impose on the other party. The promise is at the cost of the sender and believed to
be for the benefit of the receiver. For these reasons, a promise is less face-threatening to the receiver and the promise can be emphasized by being made explicit by
means of a performative verb.
When comparing the directives observed in English Contract Law with directives
observed in everyday conversations, the selection of directness levels differs
markedly in the two domains (see Trosborg, 1991). 5 The strategies used most frequently in everyday conversational English belong to the category of conventionally
indirect directives, which finding is in agreement with the findings of previous studies (e.g. Ervin-Tripp, 1976 (American English), Blum-Kulka et al., 1989 (British and
American English)). Querying the hearer's ability/willingness to perform a given act
(Could you spare me a cigarette ?/Would you mind mailing this package for me?)
amounts to 50.6% of the total number of strategies observed in conversational English, while statements of the speaker's wishes and desires (1 would like you to send
me a parts list) amount to 16.9%, altogether comprising 67.5% of the total number of
strategies. These strategies occur neither in contract law, nor in contracts.
The most frequent category in the language of the law and in contracts is direct
ordering (47.6%, 46.3%, respectively), which is the category employed least frequently in the conversational data (9.6%). As for individual strategies, statements
5 The data of comparison derive from diadic conversationsbetween native speakers of English elicited
by means of role play material constructedon the basis of anticipated illocutionaryacts with a directive
function. The role relationships between the two participants varied along two parameters: 'dominance'
and 'social distance', and the situations involved a high 'degree of imposition'.
50
A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
employing the modal verb shall are specific to legal English. Imperatives were not
observed at all in the language of the law. In everyday conversation, orders are
issued downward in rank by means of imperatives (Bring me the file), or the strategy
is used as an indicator of solidarity between interactants of equal status (Hand me the
paper, will you ?).
The modal must (deontic use) was not observed at all as illocutionary force indicator of a directive in statutes, and it was employed only infrequently in contracts
(0.6%). Must is used in conversational English in directives issued by authority figures, and it also occurs in statements in which the speaker wants to expresss enthusiasm as to the realization of the propositional content (You really must go and see
that film). The modals should~ought to were utilized only in rare cases in statutes
when a directive was intentionally weakened, and not at all as realizations of directives in contracts. These modals are typically used to express suggestions and convey pieces of advice in conversational English.
Statements of permission occur in all three domains. In statutes, permission is supplemented with the categories of 'assigment of rights' and 'limitation of liability'.
The category 'assignment of benefits' is particular to contracts.
The observed differences in the use of directives in English Contract Law compared to the use in conversational English may be ascribed to a difference between
the written and the spoken medium. However, samples of directives in written English (a corpus of business letters) also shows a predominance of conventionally indirect strategies and a low proportion of direct strategies, as did conversational English
(Pilegaard, 1990).
It is argued here that the pragmatic characteristics of the law pertain to the dependence on extralinguistic institutions and must be interpreted within the socio-pragmatic constraints of the situation. Furthermore, a consideration of the 'felicity conditions' of directives and commissives (see Searle, 1969: 64-66) is helpful in
throwing light on the selection of directives in the language of the law. 6
The declaration realized through the enactment formula, is particular to legislation, and so is the authority of legal institutions.
In legislature, the addressee's willingness to perform is not questioned - the
authority of the legislature is unquestionable; in contracts, the parties are obligated
by their signatures. These factors explain why we do not find directives of the kind
Can~could~would you do X? in the corpus. This type of directive is by far the most
frequent in conversational usage, due to a balance between being adequately polite
(conventional indirectness), and a demand for explicitness (the proposition to be performed by the addressee is explicitly stated).
The 'preparatory condition' referring to the requestee's ability to carry out the
desired action is of little relevance to the enactment of the law, as the legislature
would only enact laws that the addressees are capable of obeying. In acting otherwise, the law would become a 'dead' letter (Kurzon, 1986: 15). Hence, the total lack
of strategies querying a preparatory condition.
6 'Felicity conditions' relate to a given illocutionaryact, which can be performed under various social
conditions. Socio-pragmaticrequirementsrelate to specific social situations.
A. Trosborg /Journal of Pragmatics 23 (1995) 31-53
51
The absence in the language of the law of want-statements (the speaker's wishes
and desires for X to take place), which in conversation is realized as I want~would
like X can be explained with reference to the 'sincerity condition'. This strategy is a
statement to the effect that the speaker sincerely wants X to take place. However, as
the legislator's demands become law when enacted, there is no point in stating sincerity.
In legislative discourse, the condition of authority is crucial. The legislator is in a
position of authority over the addressee, which factor is decisive in the selection of
directness levels utilized in the language of the law. It explains the high proportion
of direct acts and may even influence acts seemingly offering the addresse freedom
of action.
As regards the examples above employing the modals may~shall, the modal verb
may has been pointed out as indicating the illocutionary force of a permission, while
acts employing the modal verb shall were treated as having the illocutionary force of
orders. Legal writers have stressed the need to distinguish between the two modals
of legal language - shall to be used with 'mandatory' and may with 'directory' force
(Craies, 1971: 229-230), that is shall implies obligation or duty and may implies
permission.
However, the illocutionary forces of order and of permission have in common an
authoritative source - the legislature. As pointed out by Kurzon (1985: 23), once an
authorized body, such as a court, has been given power by the occurrence of may to
effectuate the legal rights of a person or class of persons, it is very difficult for it not
to exercise that power.
The distinction between may and shall may also be neutralized in everyday language, e.g. a manager may tell one of her employees to leave her office by saying
You may leave now, in which case the manager's wish is to be understood as a
command.
In contrast, in contracts one party does not hold power over the other. In this symmetrical power relationship, 'permission means permission', and the sincerity of the
offer (made legally valid by the parties' signatures) is crucial, hence the explicit
statements employing performative verbs.
The lack of imperatives in legislative texts may be due to the distance between the
legislature and the body of addressees, who are never directly addressed. In the case
of the citizens, this may be due to the intervention of mediators (as interpreters of the
law to laymen). When addressing parties to a contract, lack of imperatives may be
interpreted as adherence to the principle of face-saving.
The occurrence of statements with directive intention without performative marking observed in both conversational English and the language of the law needs to be
commented on. In the conversational data, these utterances are indirect directives
(hints), in the sense that the intended directive force can be neglected by a non-cooperative hearer. This is not so with the unmarked statements of the language of the
law which make up constitutive rules. In spite of the lack of directive markers, these
statements belong to the body of rules which come into function as directives by
means of the promulgation formula (in statutes) and signatures (in contracts); hence
they function as regulative acts on a par with explicit directives.
52
A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
5.1. The use of politeness markers
In everyday conversations, the illocutionary force of directives is often hedged or
mitigated by the inclusion of politeness markers (I wonder if you could possibly ...).
In the language of the law, mitigators are almost absent (unlike the language
employed in judgments and mediation, see Maley, this volume). However, one
device, which has been observed to occur frequently, is defocalization of agent as
well as patient. A preliminary analysis has shown that only 19.4% of the observed
directives in contract law have a human subject. Depersonalization is one way of
mitigating the impact of a directive on the addressee, as in such sum shall be recoverable~regard shall be had. Another reason for the high number of directives
employing a non-human subject is the fact that the law operates by laying down its
own constitutive rules with legal actants as subjects, such as 'this act', 'the provisions of this section', 'a statutory instrument', 'the guarantee'. In contracts, subjects
pertaining to 'conditions of the contract', such as price, data, amount, license fees,
etc. amount to 23.1% of the subjects employed in regulative acts, and as such it is
the second largest subject category (only surpassed by 'collective nouns' (35.4%)).
Further discussion of this point is postponed to a future paper.
5.2. Concluding remarks
This paper has analyzed the occurrence of legal speech acts in English Contract
Law. It has pointed to declarations by means of the enactment formula as unique to
legislative texts. In contracts, explicit commissive acts occur as affirmative statements. Furthermore, an analysis has been presented of directive acts observed in the
corpus revealing the communicative acts of statements of obligation, statements of
prohibition, statements of permission (involving 'assignment of rights', 'limitation
of liability', and 'assignment of benefits'), as well as constitutive statements as
directive acts typical of the language of the law.
When comparing the observed directives to directives observed in everyday conversations, it has been shown that the selection patterns, drawn from a continuum of
directness levels, differ. Legislative texts and simple contracts of English Contract
Law show a predominance of direct strategies (statements of obligation and prohibition), whereas conversational English favours conventionally indirect strategies.
It was argued that this difference could be ascribed to the external factors of the
social situation, rather than to a difference in medium (written vs. spoken). Furthermore, it is not just a matter of the English language of the law being more direct than
conversational English (no imperatives were observed); it is a question of selecting
strategies to express a specific communicative function in a particular
sender/receiver relationship within the considerations of the 'felicity conditions' of
the act in question and within the socio-pragmatic requirements of the situation.
A. Trosborg / Journal of Pragmatics 23 (1995) 31-53
53
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