Law, Language and the Courtroom

Legal Linguistics and the Discourse of Judges

Stanislaw Gozdz Roszkowski, Gianluca Pontrandolfo, Stanislaw Gozdz Roszkowski, Gianluca Pontrandolfo

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000483864
• Edition: 1
• Topic: Langues et linguistique
• Subtopic: Linguistique

This book explores the language of judges. It is concerned with understanding how language works in judicial contexts. Using a range of disciplinary and methodological perspectives, it looks in detail at the ways in which judicial discourse is argued, constructed, interpreted and perceived. Focusing on four central themes - constructing judicial discourse and judicial identities, judicial argumentation and evaluative language, judicial interpretation, and clarity in judicial discourse - the book's ultimate goal is to provide a comprehensive and in-depth analysis of current critical issues of the role of language in judicial settings. Contributors include legal linguists, lawyers, legal scholars, legal practitioners, legal translators and anthropologists, who explore patterns of linguistic organisation and use in judicial institutions and analyse language as an instrument for understanding both the judicial decision-making process and its outcome.

The book will be an invaluable resource for scholars in legal linguistics and those specialising in judicial argumentation and reasoning, and forensic linguists interested in the use of language in judicial settings.

Part I
Constructing judicial discourse and judicial identities

1 The judicial English Eurolect

A genre profiling of CJEU judgments

Łucja Biel, Dariusz Koźbiał and Dariusz Müller

DOI: 10.4324/9781003153771-2

Eurolects are “Europeanised” hybrid varieties of national languages which have evolved to serve the linguistic needs of the European Union (EU) functioning as a supranational organisation. These are 24 “mirror” realisations in the official EU languages, mediated through various stakeholders, including translators and revisers. As a result, they are linguistically constrained and different from the corresponding national legal varieties of EU languages (Biel 2020, pp. 315–316). While most of the existing and recently growing studies on Eurolects focus on legal acts (cf. Biel 2014; Mori 2018), their judicial variety has rarely been studied until now (cf. Koźbiał 2020).¹ This niche is filled by the present chapter, which examines the judicial English Eurolect. Although EU judgments are originally drafted in French, our interest lies in the English-language versions (translations) due to the increasing role of English both in EU institutions and across Europe. To profile the judicial Eurolect, we contrast EU judgments with (1) a corpus of UK Supreme Court (UKSC) judgments and (2) a corpus of EU legal acts. This study design is motivated by the fact that legal acts and judgments belong to the same legal genre chain. As observed by Robertson (2015, p. 39), these genres capture two crucial phases – when law is created and when it is interpreted and applied by courts – and hence form the nexus of the strongest EU-related factors. Yet, although these genres may be expected to share certain features common to all Eurolects, they have different contexts of production, communicative purposes and discourse communities. These differences are likely to result in the legislative and judicial genres having distinct habitual sets of linguistic conventions. Their comparison will allow us to understand how EU judgments differ from the related genre of EU legal acts, while the comparison to UK judgments will shed more light on the hybridisation of judgments in the EU context.

¹ See Koźbiał (2020) on the judicial variety of the Polish Eurolect.

1 The Court of Justice of the European Union and its judicial style

The Court of Justice of the European Union (CJEU) is the judicial institution of the EU perceived as its constitutional and administrative court (Kuijper 2018, pp. 81–82). It is the “supreme authority” on EU law and its judicial decisions are one of the sources of EU law (Woods et al. 2017, pp. 46, 89). Functionally, it deals with two main categories of cases: (1) references for a preliminary ruling from national courts to interpret or assess the validity of EU law and (2) direct actions against Member States and the EU institutions, which include actions for failure to fulfil the obligations of a Member State, for annulment of EU legal acts, for failure to act and for damages (Albors-Llorens 2017, pp. 263–267). These two types of cases require the Court to adopt fundamentally different roles, adjudication in direct actions and interpretation in preliminary rulings:

In direct actions, the Court adjudicates on the dispute between the parties, whereas in preliminary rulings it simply gives advice on a specific point of EU law, leaving the final resolution of the dispute to the national court.

(Albors-Llorens 2017, p. 265)

Thematically, the CJEU decides mainly on economic matters (e.g. taxation, internal market, competition, intellectual property, state aid, agriculture, customs) and increasingly more on other matters, such as judicial cooperation, the environment and social policy (Bobek 2015, p. 159).

The CJEU is composed of the General Court (GC) and the Court of Justice (CJ). Acting as an administrative court, the GC hears at first instance actions for damages and civil service cases as well as direct actions not involving disputes between the Member States and the major EU institutions, whereas the CJ, acting more as a constitutional court, examines all preliminary rulings, other types of direct actions and appeals against the GC decisions on points of law (cf. TFEU² and Kuijper 2018, pp. 81–82). For example, according to the CJEU’s 2019 Annual Report,³ 90% of new cases brought before the GC in 2019 were direct actions, while in the case of the CJ, 66% of new cases were preliminary rulings, 27% appeals and only 4% direct actions.

² Consolidated version of the Treaty on the Functioning of the European Union, OJ C 326/01, October 26, 2012, pp. 47–390.³ Online Document: https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-05/ra_pan_2019_interieur_en_final.pdf

CJEU judgments are...