Written judicial discourse: mechanisms of discursive interaction between the author and the reader

Arinova Bayrta Nikolaevna ORCID: 0000-0002-5598-0718 Senior lecturer, Lomonosov Moscow State University, Law Faculty 119991, Russia, Moscow, Leninskie Gory str., 1 b.arinova@yandex.ru

Introduction

The subject of discussion is the texts of court decisions published in the judicial collections of the courts of Great Britain. Such collections contain short versions of decisions, referred to as law reports (hereinafter referred to as the judicial report).

The publication of court reports became widespread in the 19th century due to the rapid development of the judicial practice of the Anglo-Saxon system of law. According to the developed principles, not all court decisions are included in the collections: only those that introduce a new legal principle or rule, or significantly change an existing principle or rule; decisions that clarify issues related to the proper interpretation of the law, and other important decisions ^{[4, p.35]}. Over time, high requirements for the compilers of court reports: accurate and consistent presentation; clear, unambiguous style of presentation; prompt preparation (shortly after the announcement of the decision) ^{[4, p.35]}. The practice of compiling judicial collections has undergone significant changes — modern court reports can be called a model of written legal discourse. 

 As a subject of linguistic research, these texts are of great interest, since their study will allow us to expand our understanding of the judicial discourse of the UK case law system. In particular, we will analyze various elements of the texts of court reports that make up a broader discursive phenomenon — dialogicity or polyphony. Dialogicity in written discourse rather takes the form of an internal dialogue in which the content of one utterance depends on the previous one, i.e. by dialogicity we mean the process of constructing discourse using various lexical, grammatical and syntactic means.  In our opinion, such elements of the text can include not only the means that ensure the coherence of the text (for example, referential expressions, quotations, etc.), i.e. those phenomena that build the reverse perspective of the presentation, denoting the theme of the narrative and linking the semantic elements of the narrative. They also include means of prospective presentation or discursive interaction between the author and the reader, allowing the reader to participate in the narrative process. In other words, our goal is to consider the process of constructing the discourse of case law through the prism of linguistic phenomena and their pragmatic significance within the framework of written discourse.

 In this paper, we will analyze the functions of indirect speech and conditional sentences in court reports. By indirect speech we mean sentences consisting of two parts: 1) what is reported; 2) nominal constructions indicating the person who transmits the reported information, ^{[8, p.124]} for example, "[They said] [they would endorse the proposal]". Conditional constructions include complex sentences with subordinate clauses with counterfactual meaning.

Both indirect speech and conditional sentences create a certain rhetorical effect of detachment, while conditional sentences are also considered by us as a means of prospective construction of discourse.

The main part

Indirect speech in the court report is, on the one hand, its essence, because it is the testimony of a third person about the event that occurred, on the other hand, indirect speech has a functional meaning in the text of the court report, being its linguistic framing. With the help of indirect speech, the author structures his narrative, selectively showing the most important, in his opinion, the meanings of the original message, the author also interacts with the reader, because his presentation must be reliable and consistent. In other words, indirect speech has not only a grammatical function, but also a pragmatic one — that is, its meaning goes beyond the scope of a single sentence. Tannen (2007) describes indirect speech as a "constructed dialogue" - the repetition or reproduction of an already spoken passage in a new speech situation, thereby differentiating indirect speech and quotations (direct speech), which, according to the general view, verbatim reproduce the original statements ^{[10, p.17]}. This understanding of indirect speech also implies that the author the presentation actually creates a new text with certain meanings and a framework for their perception, rather than simply referring to certain statements ^{[7, p.52]}. The narrative in indirect speech implies that the author has relative discretion, i.e. there is no obligation to accurately reproduce the original, at the same time his presentation must be accurate and reliable, i.e. not to distort the original statement.

In a court report, indirect speech performs the function of presentation (demonstration) and proof or confirmation (endorsement).  The function of presentation is sometimes associated with the function of direct speech, namely with the use of quotations. Clark and Herbert describe various characteristics of quotations: quotations represent a certain referent (event, utterance) rather than describe it; quotations have greater variation in oral discourse than in written; quotations do not necessarily have a lexical and syntactic form (non-linguistic quotes); quoting implies the neutrality of the speaker's position, that is, the speaker is not responsible for the content of the message (direct citation); when quoting, we experience the author's experience ^{[5, p.786]}.

An interesting example of indirect citation in a court report is the introduction (headnote), in which the author presents the court's opinion on the main issues (legal issue/-s) and the procedural background.  From the point of view of transformations of the source text, the conclusion is a so-called "reversed" question (a reversed issue). Let's compare two excerpts, one from the court decision (CP), the second from the court report (CO).

SR: The central issue on this appeal is whether, in general, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information related to that investigation ^[15].

CO: A person under criminal investigation had, prior to being charged, a reasonable expectation of privacy in respect of information related to the investigation ^[11].

As we can see, the author of the court report changes the original indirect question for approval, demonstrating the result of the trial. The impersonal, neutral formulation of the conclusion gives it the appearance of a generalizing statement. Separating the conclusion into an independent sentence, the author of the court report gives it the appearance of a free quote ^{[5, p.787]}, at the same time, the author of the court decision is introduced in the second sentence, but already as part of a complex sentence. The main marker of indirect speech is the combination so held: where so —performs a referential function, replacing the previous sentence, held introduces the quoted message. The full version of the introduction (headnote) is presented below:

        Example A

The procedural history is a brief summary of the described event – it describes the historical background of the court decision, for the reader it is a reference point indicating the reliability and authority of the judicial report, as well as an illustration of the prototype of the “procedural history”, i.e. the generally accepted sequence of instances of consideration of appeals. The main semantic elements of this prototype are expressed by verbs denoting the procedural actions ‘allow the appeal’, ‘dismiss the appeal’, ‘uphold the decision’, ‘grant judgment’, ‘award an injunction'. The pragmatic significance of the procedural history is to give force (validate) to the decision of the Supreme Court: all previously adopted decisions can be considered as necessary prerequisites for the onset of the final decision.

Another function of such an annotation is the naming or arrangement of the main participants in the trial: the defendant, Bloomberg LP; Antony White QC for Bloomberg; the claimant, ZXC; the Supreme Court; the Court of Appeal etc.

Focusing on the arguments of the court, the compiler of the court report “depersonalizes” the narrative by using referential expressions (full nominal constructions and pronouns) instead of proper names. By transforming direct speech into indirect speech using referential expressions, the author of the court report also distances himself from the original message, i.e., being a neutral observer, he primarily describes the opinion of the court, showing that he is not personally involved in what he describes ^{[8, p.133]}. For example:

WED: Before this court Mr Westaway for CPRE-Kent advanced arguments which in their essence were ...

CO: Before the Supreme Court Counsel for CPRE Kent advanced arguments which in their essence were ...^[11]…

The distance between the author and the message and the reader is much smaller in the text of the judgment, where affirmative constructions [personal pronoun + verb] are often used in the present tense. First-person narration implies the intention, commitment of the author to write / speak sincerely and clearly. 

For example:

WED: I discuss Coulson LJ's reasoning in paras 28-29 below.

SR: For the reasons which I set out below, I am satisfied that it has not and that the appeal must be dismissed ^[16].

The introduction (headnote) to the court report in its structure resembles a statement consisting of a quote and a reference to the speaker. Starting the narrative with the decision, the compiler of the report deviates from the linear presentation of the source text (the court decision), bringing new information to the fore.  This, on the one hand, unfolds the text to the reader (first of all, to lawyers who can quote decisions in similar cases), on the other hand, it suggests that the compiler of the court report does not reproduce the text of the court decision, but reworks it for the target audience, highlighting those elements of the judicial decisions that form the main line of the court's argument.

***

In the second part of the court report, the author gives a brief description of the facts, presents the applicant's position, its legal assessment, as well as an assessment of the decisions of lower courts regarding the principles of law, applicable sources and precedents.  The process of argumentation includes many illocutionary acts, including assumptions, comparisons, explanations and statements, i.e. the dynamics of reasoning is realized using various lexical and grammatical means (modality, constructions with counterfactual meaning, negative constructions). The author thus demonstrates to the reader possible and impossible lines of argumentation, involves him in the process of reasoning, motivating the reader to put forward his hypotheses, guesses about what the judge's answer may be. Such proposals introduce assumptions, open to the reader a different point of view, a different perspective. At the same time, the author demonstrates to the reader the degree of legal uncertainty, which can be minimized if we consider the situation from different positions and find the right angle of view. In English, the values of probability, possibility, and necessity belong to the category of epistemic modality. In the context of legal argumentation, verbs of epistemic modality are often used as part of sentences with subordinate clauses.

Example C

CO: If the appeal succeeded, the legal landscape considering the remedies available in discrimination and victimisation cases would change significantly. Although the jurisdiction of employment tribunals was derived entirely from statute, the effect would be that an interim remedy would be created in a far wider range of cases than those expressly provided for by parliament ^[12].

In Ex.A complex sentence with a conditional subordinate clause describes a chain of possible consequences (ripple effect) within the framework of regulation. The modal verb would not only denotes a contextual grammatical transfer of the form of the future tense into the past, but also expresses an epistemic modality, i.e. the speaker's confidence in the onset of the described consequences.

In addition to the proper subordinate conditions, examples of indirect or reduced conditions can also be noted. In examples from another court report Ex.D the phrases ‘on the claimants’ approach’ and ‘on that approach' can be paraphrased as in ‘if we accepted / took the claimant's approach'. These proposals also introduce new possible offshoots of the situation.

Example D

CO: On the claimants’ approach, one might have expected such criteria (if intended to have the uniform and prescriptive rigidity that they advocated) to be set out in the Dublin III Regulation, or in some other European law act.

At all events, it would appear that, on that approach, all member states should be expected to have the same, or substantially the same, objective criteria in the national law of each of them ^[13].

A construction with a modal verb – one might have expected – expresses a logically conditioned (inferential), but unlikely assumption. The low probability of such an assumption is further reinforced by the following logically conditioned assumption – member states should be expected to have – the verb should (the form shall in the past tense) expresses a deontic modality, that is, in our context, a possible obligation for EU countries is implied, which can be deduced from the applicant's position. 

The verb expect in both sentences describes expected or possible actions, which also directs the reader's attention to possible consequences in connection with the plaintiff's position, and indirectly indicates the fragility of the thesis of his argument. As we can see, with the help of subordinate conditions and means of epistemic and deontic modality, the author builds a possible scenario for the development of events. By showing the weaknesses of the applicant's argument, the author takes the reader beyond the scope of the situation under consideration, as if insisting on the need to consider what could have happened. Such constructions, in our opinion, can be attributed to the means of prospection, since they create new projections of a particular situation so that the reader can not only follow the course of reasoning, but also anticipate it.

Other combinations with the if conjunction may indicate a low probability of the described event.

Example E

1.        It was the potential for future emotional and psychological harm arising, either directly from the fact, if fact it be, that the surviving parent had caused the death of the other ^[17]…

2.        In each case it would be a matter for the judge in the family court to decide, in the circumstance of each individual case, whether some or all of the issues that related directly to the death needed to be investigated in the family proceedings and, if possible, determined ^[17].

3.        It did not follow that it would also be necessary for the court to determine precisely how the death had occurred and the role, if any, that the surviving parent had played in it ^[17].

  The examples given indicate the probabilistic nature of argumentation, i.e. "it almost never leads to the formation of an absolutely true and unambiguously understood position" ^[20].

With the help of sentences with counterfactual meaning in the context of argumentation, the author conducts a “thought experiment” ^{[4, pp.15-18]} in order to demonstrate, confirm or explain a certain statement. In Ex. F the author, describing the applicable rules, builds a reverse perspective of the events that would lead to the conclusion of the contract (the contract / agreement). These events are a necessary condition for applying the described rule to the situation under consideration (the present case). 

   Example F

Part 1. First, the rules relating to rectification of a commercial contract assumed that the parties had, in some sense, negotiated that contract. The rationale of the authorities was that there would have been exchanges or discussions that led to the written agreement in question.

Part 2. In the present case, there had been no such discussions on the trial judge’s findings, and more importantly, nor could there have been. ^[14]

If we isolate the counterfactual statement from the first two sentences (Part 1), we get the following statement: If the parties had negotiated the contract, they would have had exchanges or discussions that led to the written agreement in question.

Although the grammatical forms in this sentence, as a rule, describe situations in the past, in the passage under consideration, the construction “would have had”, in our opinion, also describes how the author evaluates the situation under consideration (the present case). In other words, using counterfeit constructions, the author “denies” the possibility of applying the rule to the situation under consideration.  In the second part (Part 2), the author already states the impossibility of applying the rule using the statement “there had been no such discussions”, which is then reinforced by using a negative construction with the modal verb “nor could there have been".

Counterfactual constructions in Ex.E are incomplete counterfactual sentences.  Choosing individual counterfactual constructions, the author outlines the line of reasoning that is more important in the context of the situation under consideration; accordingly, the reader, focusing on counterfactual reasoning, participates in a “thought experiment", can predict the conclusion. 

In this part of the work, we have considered examples of discursive interaction between the author and the reader in written judicial discourse, expressed by means of indirect speech, constructions with the meaning of epistemic modality and counterfactuality. as well as subordinate conditions. All these means often constitute a separate type of illocutionary speech act – “inferential” – due to their special rhetorical (perlocutionary) impact on the reader. Using the means of indirect speech, subordinate clauses, as well as constructions with verbs of epistemic modality, the author also withdraws or distances himself from the object of the narrative – by reducing or increasing the rhetorical distance, the author constructs various directions (retrospective and prospective) of discourse, this partly explains the cognitive complexity of court reports.

Conclusion

Summarizing the above, it is worth noting that the discussion of the designated linguistic characteristics of court reports has several promising directions. In particular, one of them may be related to the study of the author's role in written judicial discourse and the mechanisms of discursive interaction between the author and the reader that construct the discourse. Despite the fact that the texts of court reports and court decisions have common discursive characteristics (hierarchy, institutionality, formal legal language, standard English ^{[2, pp.7-21]}), each court report is a new text, a new statement. A significant part of this statement is occupied by legal argumentation, but in court reports legal argumentation is not limited only to logical methods of proof, "legal argumentation is always a deeply personal individual reasoning that manifests itself in an unfamiliar, often non-standard situation" ^{[3, pp.21-25]}.

Moving through the text, the reader reveals structural connections within the text, (logical and referential connections) however, understanding the meaning of the text as a whole unit implies understanding not only the functional role of the means of lexical and grammatical communication, but also an assessment of their rhetorical effect within the text - it's about the impact (perlocative force) on the reader, that is, the text – this is a discursive process of “living” meaning (experiencing of meaning) ^{[9, pp.15-17]} carried out through the interaction of the author and the reader. In other words, a judicial report is at the same time a process of interaction between the author and the reader, it traces the dialogicity and dynamics built up with the help of discursive mechanisms, and a decision that becomes part of a broader discourse of case law.

The study of the pragmalinguistic characteristics of judicial reports in the British judicial discourse will obviously lead us to the analysis of intertextuality ^{[6, pp.33-36]} or presuppositions, "which are included in the semantics of the sentence as a "fund of general knowledge" of interlocutors" ^{[1, pp.84-89]}, that is, it can take the researcher beyond the text. However, a deeper understanding of the complex phenomena that form the dialogicity of legal discourse and the process of recontextualization is achieved primarily through the analysis of the text and those discursive mechanisms that give the discourse a tangible form (tangible form).

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