Transparency, Power, and Control

Perspectives on Legal Communication

Christoph A. Hafner, Anne Wagner, Vijay K. Bhatia

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138248823
• eBook ISBN: 9781317006664
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

This book brings together academics and practitioners from a range of disciplines from more than twenty countries to reflect on the growing importance of transparency, power and control in our international community and how these concerns and ideas have been examined, used and interpreted in a range of national and international contexts. Contributors explore these issues from a range of overlapping concerns and perspectives, such as semiotic, sociolinguistic, psychological, philosophical, and visual in diverse socio-political, administrative, institutional, as well as legal contexts. The collection examines the ways in which 'actors' in our society - legislators, politicians, activists, and artists - have provoked public discourses to confront these issues.

Chapter 1
Transparency, Power and Control in Legal Communication

Vijay K. Bhatia, Christoph A. Hafner, Lindsay Miller and Anne Wagner

Could language injure us if we were not, in some sense, linguistic beings, beings who require language in order to be? Is our vulnerability to language a consequence of our being constituted within its terms? If we are formed in language, then that formative power precedes and conditions any decision we might make about it, insulting us from the start, as it were, by its prior power. (Butler 1997: 1–2)

Communication, in general, and legal communication, in particular, is an act with consequences, and comprises performative utterances with effects. There exist various ways in which actors in our society have provoked public discourse in order to unveil the unsaid or hidden mechanisms of power and control, and then to call for transparency to all citizens – that is, readability, visibility and accessibility. Legal communication encompasses complex relations across a diversity of languages, cultures and different orientations arising from their confrontations within space and time. The treatment of data and its reliability presupposes intercultural analyses with factorial typologies: linguistic, pragmatic and situational accounts. Cultural ‘embeddedness’ is a key notion in effective, transparent and clear legal communication, which involves analysing the power of social institutions included in the language itself but not limited to it. Bourdieu (1991: 109) posits:

He thinks that he has found in discourse itself – in the specifically linguistic substance of speech, as it were – the key to the efficacy of speech. By trying to understand the power of linguistic manifestations linguistically, by looking at language for the principle underlying the logic and effectiveness of the language of institutions, one forgets that authority comes to language from outside, a fact concretely exemplified by the skeptron that, in Homer, is passed to the orator who is about to speak. Language at most represents this authority, manifests and symbolizes it. There is a rhetoric, which characterizes all discourses of institution, that is to say, the official speech of the authorized spokesperson expressing himself in a solemn situation, with an authority whose limits are identical with the extent of delegation by the institution.

The overall aim of a state is to protect the social order in which the individual liberty of the citizen is a major concern. As a consequence the state should guarantee simultaneously but also paradoxically a high level of individual freedom and an order in which such freedom is made possible and guaranteed with respect to others and within the framework of legal communication.

Legal communication serves that purpose with legal interpretation and conceptual transfer, translatability in legal texts. These activities are captivating not only for the jurists who can conceive hypotheses, but also for actors in society (amongst others: politicians, photographers, drafters, artists, translators) who have to understand the very core of the message. The participant in legal interactions is seduced by the sophisticated repartee established between the law and its medium of expression. It offers him/her the opportunity to enter the world of legal communication by his/her active participation in the comprehension of the law, but it also shows his/her vulnerability in terms of understanding, misunderstanding or even non-understanding.

The present edited collection of research papers offers an integrated perspective on the issues of transparency, power and control in legal communication. Each chapter focuses on a specific context providing a study within a specific theoretical framework to investigate how these three issues and other related concepts impact our socio-political environment in the present-day world. The volume is divided into two parts: Part I contains chapters that deal with theoretical aspects of legal communication, while Part II is a collection of chapters addressing issues of visualizing and contextualizing transparency, power and control.

Part I: Theorizing Transparency, Power and Control in Legal Communication

It is an illusion to believe in clear legal communication and legal drafting of norms. Transparency is a goal to attain in itself, but this goal is subject to legal interpretation.

Clear, simple and precise drafting of Community legislative acts is essential if they are to be transparent and readily understandable by the public and economic operators. It is also a prerequisite for the proper implementation and uniform application of Community legislation in the Member States. (European Parliament etc. 1999: preamble (1))

Rules are not free from interpretation, from controversy (Moor 2005: 170), from social conceptions, manipulations, political beliefs and ‘diplomatic’ law:

Where jurists seek precision, diplomats practice non-speak and are not averse to ambiguity. It happens more often than one might think that they fail to agree on a word simply because it does not have the same meaning for everyone. … They likewise encourage writing techniques that here and there allow for perpetuating interesting – and promising – contradiction. (France, Conseil d’Etat 1992 cited in Gallas 2001: 117ff)

As such the debate over legal dynamism, plurality is a never-ending story. Language has this capacity of distortion, of modifying its initial meanings which is viewed as a lexical potentiality (Cornu 2005), as ‘spaces in meaning’ (Fish 1989) or as an evasive criterion ‘fuyance’ (Gény 1922). There are two possibilities of translatability in legal communication, which are the direct consequences of the descriptive intent of the legislator:

1. What degree of flexibility is given to the user/interpreter of the rule? And/or

2. What degree of rigidity will be imposed on him/her in the application? Will he/she have the capacity to ‘speak’ or interpret the law?

An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just. (Driedger 1974: 131)

Research into the intention of the legal communication gives the interpreter a free space within the confines of the text to produce a dynamic application of the law. In his/her search for meaning, he/she essentially uses terminological, semantic and syntactic tools and takes the consequences of the application of the law into account. The interpreter integrates in his/her data collections new formulations, which are combined with specific cognitive contents. Consequently, saying that legal communication has specific, bounded meanings is not that simple, since if this were the case, laws would be too rigid and only one single meaning would exist and fit only specific circumstances (Wagner 2005).

… whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose integration and application are questions of practice. (The Sunday Times v. The United Kingdom (1979) ECHR 1: para. 49)

The criteria for legal certainty and transparency in legal communication remains subject to the power and control of government as expressed through the legal instruments that constitute the state’s legal system. However, access to these important texts remains limited, as Cutts notes when he says:

like a poor man’s Martin Luther King, I have a dream. It is that every person of reasonable intelligence and literacy may sit at their kitchen table and open a small book or CD-ROM in which the most important laws that govern them are clearly and simply written in their original, unabridged form. I have that dream. But we stand a long, long way from making it reality. Indeed, I sometimes think the prospect is daily receding. (Cutts 2000: 11)

The chapters in Part I of this book offer theoretical insights into the social and linguistic practices that relate to issues of transparency, power and control. Deborah Cao in her chapter ‘Linguistic Uncertainty and Legal Transparency: Statutory Interpretation in China and Australia’ investigates linguistic uncertainty in statutory interpretation in China and Australia. Cao suggests that transparency of law serves an important function to secure the trust of the governed population. However she points out that linguistic uncertainty, defined as ‘the indeterminate properties of language such as linguistic vagueness, generality and ambiguity’ may make such transparency harder to achieve as it reduces predictability and stability. Of course, such linguistic uncertainty can also be useful as it provides a certain flexibility in the application of law. The chapter provides a comparative analysis of practices in China and Australia, which aim to resolve linguistic uncertainty in legislative texts. The analysis suggests that there is greater uncertainty in the Chinese system and this is attributed to a ‘lack of coherent and consistent legal narrative in China, and the lack of precedent which may settle indeterminate cases in reference to a settled past legal history as it exists in English common law’. Cao argues that established legal rules and principles of statutory interpretation are yet to form in China and this means that authorities can make decisions or exempt themselves from the law, i.e. use the uncertainty to their own advantage.

Celina Frade in her chapter ‘The Power of Legal Conditionals in International Contracts’ discusses the use of conditionality in common law texts, especially focusing on the role it plays in contracts. Considering legal English as the main tool of international contracts to regulate legal relations and actions in multilingual and multi-legal contexts, she discusses what constitutes conditionals in this legal genre. In her view, conditional constructions seem to be the phenomena which most evidently portray the inherent power of the parties to control potential contingencies and anticipate possible (and agreed) solutions in contracts. She investigates how conditionality is manifested in international contracts in English, under a multifunctional approach comprising functional and discoursal and cognitive domains, and claims that a conditional construction if p, then q – takes on a restrictive value dependent upon the position of if p in contractual clauses thus helping in the understanding of the correlation between situations and actions by transposing discourse from one current context (the contract rendering valid in the present) into another (the contract dealing with future contingencies).

Irena Szczepankowska in her chapter ‘The Directive and Persuasive Style of a Legislative Speech Act and the Transformations Thereof’ focuses on the historical development of speech acts in legal contexts within Poland. Her claim is that such speech acts have been historically shaped by the communication convention of the time they were given. In Poland such legal speech acts have been influenced by the Germanic stylistics of an ortyl. The author considers if such speech acts are clear and transparent to citizens nowadays as they are often based on the concept of ‘motiva evitentur’: that legislators are not expected to give explanations, only declaratives and directives. Szczepankowska considers whether this antipersuasive restriction is justifiable nowadays in democratic states where citizens may want to know the motives for legal decisions, but which are not apparent because of the ways in which the legal speech acts are framed.

Anita Soboleva presents ‘Zorkin v. Morschakova: Legal Dispute in Rhetorical Terms’. The chapter provides a rhetorical analysis of the debate between two prominent Russian judges and legal scholars on the subject of judicial reform in Russia. Soboleva shows how the two judges differ in the topoi or commonplaces (common background knowledge, warrants) that they adopt in order to support their arguments. The chapter highlights a philosophical difference in the way the two judges approach legal interpretation, similar to the difference between the legal positivism of H.L.A. Hart and the natural justice of Ronald Dworkin. While one judge (Morschakova) approaches legal interpretation by appealing to ‘higher principles of law’, the other (Zorkin) prefers to rely on the letter of the law, and avoid reference to what he terms ‘higher principles of expedience’. The rhetorical analysis shows differently grounded argumentation styles, with Morschakova making appeals to reason (logos) while Zorkin appeals to emotion (pathos). Soboleva argues that ultimately, appeals to emotion are unsuccessful in persuading the legal community for whom the texts are intended.

In André Bélanger and Andy van Drom’s chapter ‘A Dialogical and Polyphonic Approach to Contract Theory’ the authors present a complex analysis of the roles of dialogism and polyphony as applied to contract theory. The authors illustrate through examples that ‘… polyphony concerns the traces of decisions and positions that are elaborated in a fully-fledged interaction with the other, whereas dialogism considers the elaboration of a given utterance in the verbal milieu of social representations …’. As such, when deciding on the definition of a contract we should focus on the polyphonic process rather than the dialogic mechanisms. In their analysis of the literature on dialogism and polyphony, Bélanger and van Drom develop a conceptual framework illustrated in a tetrahedral model for discursive contractual analysis in order to answer the simple question: who is thinking and speaking in the utterance of a contract? This chapter shows how the ‘… relationship between discourse and social factors is not direct (transparent), but manifested through a process of mediation’. In order to understand the process we have to consider the ways in which language is used by the addresser and the addressee, and that ‘a mosaic of voices’ interact in binding the contractual text together.

Colin Robertson presents ‘What EU Legislative Texts Reveal about Power, Control and Transparency’. Robertson’s chapter is based on the assumption that the European Union has been constructed using legal texts, in the form of primary treaties supplemented with a plethora of other acts and instruments, which express the will of the member states and the institutions they have created to work together in peaceful and orderly cooperation, for the benefit of all. He identifies a constructed set of arrangements in EU texts touching on issues of power, creating balancing mechanisms and arrangements for control of the exercise of power for the benefit of business, individual persons and citizens, which he claims are crucial for one’s understanding of the system. The implications are for the transmission of information and transparency, while preserving the ability of the institutions to function efficiently. Drawing on the analysis of the written texts as signs, the chapter is an attempt to present a picture in terms of a series of relationships that indicate structural contexts in which issues of power, control and transparency arise. There seems to be an inherent balance, he claims, to be achieved between the need for information to the public and the ability of the institutions to work efficiently without undue pressure.

M. Douglas Bellis in his chapter ‘Toward an Objective Means of Measuring Governmental Legitimacy’ discusses the issue that authoritarian governments are not as stable as they sometimes appear to be, as recent events in North Africa and elsewhere show us. While they may survive for decades, people power seems sooner or later to prevail against them. At the same time, forms of government based more clearly on the consent of the governed appear to last for centuries and may indeed have a sort of permanency. What is the philosophical basis for this apparent empirical fact? During the Enlightenment in Western Europe there arose a belief that this basis was founded in the laws of nature, much as the then contemporary advances in physics were. But this belief became clichéd and discredited over time for a variety of reasons. Instead, a somewhat uneasy and subjective consensus has arisen that governments ought to be ‘nice’ and respect the rights of their people, though the content of those rights seems arbitrary and subject to ultimate determination by the very governments involved. Without firmer underpinnings, this consensus offers little practical guidance for the determination of the legitimacy of any given government. Perhaps the dismissal of the Enlightenment conclusions was too hasty and based on a trivialization of them rather than on their fundamental, and still persuasive, premises.

Part II: Visualizing and Contextualizing Transparency, Power and Control

Legal communication is an act of showing, sharing, accepting and transforming cultural acts. Habermas (cited in Warnke, 1995) states that in a multicultural society the inclusion of every form of life that has rights consists of the recognition for everybody to have:

The opportunity to grow up in the world of cultural heritage and to have his or her children grown up in it without suffering discrimination because of it. It means the opportunity to confront this and every culture and to perpetuate it in its conventional form or to transform it (in Warnke 1995: 131)

The chapters in Part II seek to harness the diverse and innovative works within and across the boundaries of law, language and media in various contexts and manifestations to better visualize and contextualize transparency, power and control. Rosen (1990: 157) noted:

That there is a complex dependency between law and culture is not just a consequence of citizens bringing to the law their cultural baggage and the law seeking a legitimacy that speaks to citizens. Social justice (or at least a morally rich pluralism) depends not only on the autonomy of law but also on the interdependencies of law and culture. Interdependence is normatively required, at least in part, because not only must the law morally matter to a culturally heterogeneous population, but also the law ought to be able to speak to those whose claims it does not currently recognize.

Michelle Wirth in her chapter ‘Battle of the Sexters: Teens Celling Sex in a World Wide Web of Conflicting Laws, Values and Social Norms’ presents a case study of the practice of ‘sexting’, where teenagers use the multimedia text message function of their mobile phones to send each other sexually suggestive self-portraits. The chapter describes a legal case (Miller v Skumanick) concerned with teenage girls who had engaged in sexting, and found themselves at the centre of legal proceedings as a result. Wirth performs a semiotic analysis of legal documentation, including briefs, judgments and legislation, in order to highlight problematic legal terms and the associated assumptions and world views that are brought to bear in their interpretation. The case described raises a number of interesting issues, including the issue whether a child who has engaged in sexting can be appropriately charged with a criminal offence under anti-child-pornography laws. Wirth observes that in such cases, the child appears to be simultaneously constructed as perpetrator, accomplice and victim. The case demonstrates how legal texts and their interpretations must shift and adapt to accommodate technological change. It is increasingly the case that changes in technology make possible new scenarios which have not been considered at the time that laws are passed, and such changes in technology (and attendant changes in society) lead to the introduction of unexpected ambiguities which have to be resolved by judges charged with set...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Figures
• List of Contributors
• Preface
• 1 Transparency, Power and Control in Legal Communication
• PART I: THEORIZING TRANSPARENCY, POWER AND CONTROL IN LEGAL COMMUNICATION
• PART II: VISUALIZING AND CONTEXTUALIZING TRANSPARENCY, POWER AND CONTROL
• Index