Riassunto libro English for Law, Sintesi del corso di Inglese Giuridico

Scarica Riassunto libro English for Law e più Sintesi del corso in PDF di Inglese Giuridico solo su Docsity! 1 Girolamo Tessuto English for Law A toolkit for discourse and genre-based Approaches to ESP language For classroom or self-study use 2021 2 Unit 1 LAW DEFINITION The word LAW doesn’t have an universally accepted definition, but it’s very often defined by the system of • RULES • GUIDELINES (linee guida) • CUSTOMS (usi) • PRACTICES (prassi) created by STATE and enforced (applicate) by the imposition of PENALTIES. ⬇ Penalties are a mean used to enforce obedience to rules (mezzo utilizzato per attuare l’obbedienza alle regole). Rules are considered as law when they • regulate the way people behave in society and • create and preserve social order. **************************************************************************************************************************** The law is a rule or a body of rules of human conduct, prescribed or formally recognized as binding or enforced by a controlling authority: indeed (infatti) the State has the force to enforce penalties that make us obey at those rules. **************************************************************************************************************************** THE POLITICAL AND LEGAL SYSTEM OF THE UK UK is a parliamentary democracy and constitutional monarchy: • the government is voted into power by the people to act in the interests of people (parliamentary democracy); • the monarch remains politically impartial and with limited powers (constitutional monarchy). The Parliament is formed by the 2 directly elected chambers (= camere): 1) the House of Commons; 2) the House of Lords. The Crown is an integral part of the Parliament. The monarch has a constitutional role: he opens and dissolves Parliament and approves Bills before they become law. In the UK there are 3 separate legal systems: • English law operating in England and Wales; • Northern Ireland law operating in Northern Ireland; • Scots law operating in Scotland. English law and Northern Ireland law are based on common law (also known as case law or judge-made law) and the principles made by judges with the system of precedent. Scots law is a hybrid system based on civil and common law elements. English common law is so called because it was the ancient law applied uniformly throughout the kingdom of England after the Norman Conquest in 1066. Three languages characterized it: French, Latin and English. THE UK CONSTITUTION All the three legal systems didn’t have a complete code like Italy or US. The UK constitution is often described as an unwritten constitution. The reason is that it contains a lot of principle that are emerged during the centuries from a variety of sources: 5 SOURCES OF LAW IN THE UK UK law is originates from legislative sources and judicial sources. Legislative sources are: • primary legislation (Acts of parliament or statutes); • secondary legislation; • European Union legislation and the European Convention on Human Rights. • Judicial sources consist of: • common law; • equity precedents (case law). The domestic law includes important statutes: Magna Carta 1215, Bill of Rights 1689 or Act of Settlement 1701. PARLIAMENTARY SOVEREIGNTY (= sovranità) IN THE UK The parliament has a very important role in the UK. Parliament is the originator of the most important source of law, ACTS or STATUTES. Parliament can also delegate power to a government minister; this is the case of the delegated legislation or secondary legislation. Judicial sources derived from common law are subordinate to legislation. In cases of conflict, primary legislation must be preferred. The parliament can enact (= emanare) or repeal (= abrogare) any law. Instead, the delegated legislation can be challenged (= impugnata) in the courts. Ultra vires is a Latin term to define the situation when the delegated goes beyond (= oltre) the powers that the Parliament gave to it. SOURCES OF LAW IN THE USA The primary sources of USA are: • the United States Constitution; • state constitutions; • federal legislation; • state legislation. The US Constitution is the supreme law of the state, so everything have to respect it. It establishes fundamental freedoms and rights of people following the Bill of Rights. The Unites States Congress is the federal legislative body. It is divided in House of Representatives and the Senate. It enacts (emana) federal statutes that are apply in the 50 states. The State Statutes are different they are enacted by the 50 state, which are separate with their own constitution, state governments, and state courts. Federal law is superior to state law. SOURCES OF LAW IN THE EU The sources of law in the EU are divided in: 1) PRIMARY LEGISLATION —> it consists of several treaties; 2) SECONDARY LEGISLATION —> it consists of law made by the Council, Parliament and Commission. In Secondary legislation: • regulations —> regulations are general, binding and direct applicable in all member states. They cannot be varied by national legislation; • directives —> directives are binding for the member states about the results to be achieved. A single state can choose the way to achieve the result; • decisions (binding legal acts)—> decisions are binding but only for the subject whom it is addressed. It is an individual measure; • recommendations and opinions (non-binding acts). 6 In the EU constitutional law, the difference between direct applicability and direct effect is very important. Direct applicability is the principle that EU law becomes part of the law of a member state; it is also called as self-executing law. Direct effect is the principle that Union Law confer rights on individual or institutions which the courts of EU member state must recognize and enforce. LEGISLATIVE PROCESS IN THE UK: HOW A BILL BECOMES AN ACT A Bill (an item of legislation before it becomes law) comes from: • the government —> it is called government-sponsored Bill; • an ordinary member of Parliament —> it is called private member’s Bill. At the first, there are the consultations. There are the White Paper and the Green Paper. White Papers are proposals on topics of current concern. Green Papers are introductory reports on a particular area and a government minister creates them. After the consultations, there is the drafting process when Parliamentary draftsmen (= redattori parlamentari) set out the Bill in a draft legislation (= progetto di legge). Then the Bill goes through a number of parliamentary readings, which are formal stages of enactment by both Houses of Parliament*. * These stages, simplified, are: 1) FIRST READING —> the Bill is introduced in one of the House. There are not debate or vote; 2) SECOND READING —> this is the first general debate. A government minister introduces it. The opposition responds and then other member are free to debate it. At the end the House votes; 3) COMMITTEE STAGE —> the Bill is debated in detail by a small group or ordinary member of Parliament; 4) REPORT STAGE —> the members who were not part of the Committee debating the bill may consider any of the amendments (= emendamenti/ modifiche) made by the Committee. Any amendments may be accepted or reversed; 5) THIRD READING —> this is the final debate, and no amendments are possible; 6) MOVING TO THE OTHER HOUSE —> if the Bill passes in one House it passages in the other one. When agreement is reached, this ping-pong ends; 7) ROYAL ASSENT —> when Royal Assent is given (presentation of the bill to the monarch for approval), the Bill becomes an Act of Parliament and law. LEGISLATIVE PROCESS IN THE US: HOW A BILL BECOMES AN ACT In the US the power to discuss the bills and to enact law, reside in the Congress that is formed by: • Senate and • House of Representatives. A Bill must go through a number of stages by both House of Congress, these stages are: 1) INTRODUCTION —> a representative sponsor or a senator introduces the Bill to the Congress; 2) COMMITTEE CONSIDERATION —> the Bill is assigned to a committee. It can accept, amend or reject the Bill; 7 3) CONGRESSIONAL DEBATE AND VOTE —> members of the House debate the Bill and propose amendments before voting. If the Bill is passed by majority voting, it moves to Senate and goes through a similar process of committee consideration and voting. At this point both Houses must agree on the same version of the Bill; 4) ENROLLMENT—> the final text is printed and it is prepared to be present to the President; 5) PRESIDENTIAL OPTIONS —> when President receives the Bill: • He can approve the Bill and sign the Bill into law; • He can refuse to sing it and it return to Congress. This is called veto. Congress can override (= ignorare) the veto by successful voting and the Bill becomes law; • The president take no action on the Bill while Congress is in session (= in seduta), and the Bill become law; • The president may take no action while the Congress adjourns its session (= lavori del congresso rinviati), and the Bill dies, a process known as pocket veto. STATUTORY INTERPRETATION There are 3 rules of interpretation: 1) LITERAL RULE (literalism) —> following this rule you have to give to the words their ordinary and literal meaning; 2) GOLDEN RULE —> following this rule you have to give to the words their ordinary and literal meaning as far as do not produce absurdity or inconsistency with the rest of the document; 3) MISCHIEF RULE —> this involves the study of the intention of the parliament. It involve the study of the defects that the statute want to remedy. In addition, there are rules of language and presumptions. JUDICIAL PRECEDENT (CASE LAW) English and American judges decide the law not only interpreting statutes but also applying judicial precedent. This means that they take same decisions of past cases, if both cases have similar material facts. This is the principle of the binding precedents. Not all of the judgment is binding, but only the ratio decidendi (part of a judgment which establishes a legal principle to be followed in later cases). Instead the obiter dicta is not a binding part of the judgment to follow, it is a principle not strictly relevant with the decision of the case. It is only persuasive. For example personal consideration of the judge. AVOIDING PRECEDENTS There is a flexibility in the use of precedents. Judge has 3 method to deviate (= derogare a/ discostarsi da) from a binding precedent, by: 1) DISTINGUISHING —> the judge finds that the material facts of the first case are different from the material facts of the second one; 2) REVERSING —> a court higher in the hierarchy change the decision of a lower court for the same case; 3) OVERRULING —> a court higher in the hierarchy reverses the decision of a lower court in a different case, so the higher court creates a new decision to follow. DRAFTING STYLE, TYPES AND FUNCTIONS OF JUDICIAL OPTIONS (stile di redazione) Often, American and English judges have a traditional drafting style (= stile di redazione) and organization with different sections: 1) CAPTION —> this section identifies the case (parties’ name/ judge’s name…); 2) INTRODUCTION —> with the essentials of the case; 10 THE JUDICIARY: MAGISTRATES (DJ’S) AND JUDGES The term judiciary is used to describe magistrates or judges. Magistrates sit in inferior court; they consider the evidence in each case and reach a verdict with the most appropriate sentence. They are dived in lay magistrates and district judges (DJs) who are known as Justices of the Peace. Lay magistrates are not legally qualified and do not pay expenses. They are appointed for their qualities of judgment and responsibility. District judges are members of the judiciary and are legally qualified (DJ must be a solicitor or a barrister). Judges sit in superior court; they must be independent and they have judicial immunity. THE JURY Juries often operate in criminal proceedings in the Crown Court. They consider the evidence and distinguish true facts from not one. The judge gives the direction to the jury on the relevant law and it reach a final verdict. In civil proceedings, juries function is to decide how much money should be paid in compensation. CIVIL VS CRIMINAL LAW CASES: BASIC DISTINCIONS CIVIL LAW Civil law concerns civil or private rights. It deals with the resolution of legal disputes between individuals or businesses (= imprese) about legal duties and responsibilities. It provides remedy for a wrong suffered (= torto subito) usually in the form of damages (= danni). So it regards property damage, personal injuries, breach of contract, divorces etc. Who thinks that have suffered a loss or harm can take out a lawsuit (= intraprendere una causa) against another person that believe to be legally responsible for the loss or for the harm. The person that brings an action is called claimant, the other one is called defendant. Always there are two types of remedy in civil law: • DAMAGES —> this is the money that have to be given from the defendant to the claimant as financial compensation for the harm done; • INJUNCTION —> this is a court order to do (mandatory injunction) or not do something (prohibitory injunction). This remedy is granted with the discretion of the court. This is a difference between injunction and damages. Other remedies are: • SPECIFIC PERFORMANCE —> this is a court order which compels the person to perform their part of a contract, such as handling over goods agreed to be sold; • RESCISSION —> this allows the innocent party to have the contract cancelled; • RECTIFICATION —> with this remedy it’s possible to amend a document if it doesn’t accurately reflect the intention of the parties to it. CRIMINAL LAW Criminal law is the law of crimes and their punishment. It deals with the crimes of individual against the state or other citizens. Example of crimes are: murder, personal offences, assault, battery, rape, property offences. In these situations the State bring the offender to justice, not like in the civil law. Crimes are generally offences against the State. The action taken against the defendant is called prosecution. 11 The criminal law courts decide the innocence or guilt of the defendant according to the principle of criminal law. If they decide that a man is guilt, there will be criminal sanctions like: imprisonment, fines (= multe) and community sentences. TAKING A CIVIL CASE TO COURT: AN OVERVIEW A civil case begins when the claimant sues the defendant on legal matter. The claimant informs the court of the damage suffered and remedy requested by filing a complaint (= archiviare la denuncia). The case is heard in Country Court or in High Court. One party can write the other a demand or offer letter with a settlement amount. Then the parties begin their negotiation and settle the case before trial begins. If no settlement is reached between the sides, civil trial will start. At trial the claimant must prove that the events occurred in the manner claimed (burden of proof). Once the claimant has satisfied the burden, the burden shifts to the defendant. The trial ends with the judge making his decision based on the evidence and arguments put before him by each party’s advocate. If the claimant wins his action, the judge will deliver judgment based on the appropriate remedy. Either party may appeal to the higher court. TAKING A CRIMINAL CASE TO COURT: AN OVERVIEW The state (Police) commence a criminal action; bust a private individual can also bring a criminal action against another individual (private persecution). A criminal case begins when a crime is reported to the police, who arrest suspects. After arrest police carry out their investigations. Then the police send a report of the case to the Crown Prosecution Service, that decides whether or not to proceed with persecution. If CPS decides to decides to proceed with persecution, the lawyer acting as a Crown prosecutor will prosecute the accused, who becomes the defendant. The case will be heard in the Magistrates’ Court or Crown Court. The prosecutor must prove to the magistrates or the jury that the offender committed the crime beyond reasonable doubt. The court must then determine whether or not the defendant is guilty of the offence charged. The magistrate will take into consideration mitigation circumstances. After trial, the magistrate or the jury may decide on a verdict of guilty or not guilty. In case of guilty verdict, will be pronounced a sentence if punishment. The convicted offender will be entitled to appeal if he believes he did not receive a fair trial. In case of a not guilty verdict, there be an acquittal (= assoluzione) p Andre the defendant cannot be retried for the dame offence. CRIMINAL LAW - ELEMENTS OF CRIME There are two fundamental element for a crime: 1) actus reus, or the guilty act; 2) mens rea, or the guilty mind. The 2 elements must be present at the same time. PHYSICAL ELEMENT - ACTUS REUS The actus reus consists in 3 important elements: conduct (= condotta), circumstances (= circostanze) and consequence or result. Ex: Actus reus of a MURDER 🔪 12 • conduct —> unlawful act; • circumstance —> behavior harming a person; • result —> death of a person. MENTAL ELEMENT - MENS REA The mental element of the crime incorporates 1 of the 3 general states of mind. They are: • INTENTION —> intention is the higher degree of culpability. Intention describes a person who acts with the subjective intention of bringing about one or more of prohibited results with the knowledge that certain facts are true to result. • RECKESSNESS (= imprudenza/ incoscienza)—> describes a person who knows of the risky consequences to occur and proceed with the unreasonable and unjustified conduct, not caring if the consequences would result or not. • NEGLIGENCE —> describes a person who is inadvertent to the consequences of his or her risky conduct, but a reasonable, prudent person in the same circumstances would have foreseen those consequences. LEGAL DEFENCES TO CRIMINAL LIABILITY The person who goes on trial may invoke a defence who may preclude or mitigate his conviction (= condanna). The most common defences that apply to criminal law matters include non-insane automatism, mistake, intoxication, duress (= minaccia), necessity, self-defence. They operate in 3 ways: 1) to deny the actus reus by pleading (= chiedendo) non-insane automatism; 2) to deny the mens rea by pleading insanity, mistake of fact, intoxication; 3) to justify defendant’s actions by pleading duress, necessity, self-defence. 15 There are 3 vitiating factors that make the contract void (= nullo) or voidable (= annullabile): 1) DURESS (= violenza/ minaccia) and UNDUE INFLUENCE (= indebito condizionamento); 2) MISTAKE (= errore); 3) MISREPRESENTATION (= dolo/ falsa dichiarazione). VITIATING FACTORS DURESS and UNDUE INFLUENCE - DURESS —> pressure [actual or threatened (= eventuale/ minacciato) physical force] exercised on the injured party (= parte lesa), who has no alternative to agreeing to the contractual terms set out (= fissati) by the person exercising the pressure; - UNDUE INFLUENCE—> improper pressure or influence induced by a person on whom reliance (= fiducia) was placed with respect to any transaction (= rispetto/ con riferimento a ogni affare). When the relationship between the parties is so close, the stronger party may exercise undue influence over the other (ex: doctor 👨⚕ and patient 🤕 ). MISTAKE An erroneous belief about a question of fact (mistake of fact) or a question of law (mistake of law). There are 3 types of mistake: 1) MISTAKE AS TO THE SUBJECT MATTER —> this mistake precludes the consensus ad idem of the parties, and makes the contract void. It arises (= si pone/ emerge) when the parties are at cross purposes with one another (= le parti hanno obiettivi diversi). Ex: A is offering one thing, but B thinks he is accepting something different; 2) MISTAKE AS TO THE EXISTENCE OF THE SUBJECT MATTER/ MUTUAL MISTAKE —> the subject matter of the contract has ceased to exist (= ha cessato di esistere) before the contract was entered into (= concluso). The contract is void; 3) MISTAKE AS TO IDENTITY OF THE PERSON CONTRACTED WITH —> one party believes he is dealing with one person but is in fact dealing with a different person. The contract is void if the intention was to only deal with a specific person. MISREPRESENTATION A false statement of facts made by one party during contractual negotiations which induce the other party to enter into the contract. Misrepresentation makes the contract voidable. N.B. - REPRESENTOR (or MISREPRESENTOR) —> person making the misrepresentation; - REPRESENTEE (or MISREPRESENTEE) —> person to whom I the misrepresentation is made. Misrepresentation is only operative when it becomes an inducement to enter into the contract. 16 DISCHARGE (TERMINATION) OF CONTRACT DISCHARGE: with discharge we means that the parties are free from their contractual obligations and the contract comes to an end. The discharge of a contract can be achieved in 4 ways: 1) by PERFORMANCE —> both parties carry out the obligations under the contract; 2) by AGREEMENT —> both parties agree to vary it and a new contract is formed; 3) by BREACH OF CONTRACT (= violazione) —> one party refuses to carry out his obligations under the contract; 4) by FRUSTRATION —> the obligations under the contract become impossible to carry out through no fault of either party. The contract is impossible to perform. REMEDIES FOR BREACH OF CONTRACT The most usual remedy in case of a breach of contract is that of damage. The aim is to compensate the aggrieved party (= parte lesa) for any loss suffered by the breach. A claim (= pretesa/ richiesta) for damages may take 2 forms: 1) LIQUIDATED DAMAGES —> the parties have specified in the contract the amount of damages to be paid; 2) UNLIQUIDATED DAMAGES —> if there is no such agreement, the court will assess the loss (= valuterà la perdita) and fix the amount of damages to be paid by the parties. Other remedies includes: 1) QUANTUM MERITUM (as much as he deserves) —> it arises when a contract has not been fully performed but some work has been done under the contract and the claimant (= attore) asks for payment with regard to that work; 2) INJUNCTION (= ordinanza/ provvedimento proibitorio)—> a court order to stop someone breaching a term of the contract; 3) SPECIFIC PERFORMANCE —> a court order asking a party to perform his obligations under the contract. TORT LAW (= diritto civile) Tort (= illecito) is an act or omission that gives rise (= dà origine) to an injury or harm by one person to another. Tort constitutes a civil wrong (= torto civile) for which courts impose liability (= responsabilità) and provide the most common and important remedy of compensation in the form of unliquidated damages. The aim of compensation in tort is to restore the injured party to the position he would have been in if the tort had not been committed. In tort law, it must usually be shown that the wrong was done intentionally or negligently —> so the defendant (= convenuto) must be at fault (in colpa). Must torts are actionable per se —> they provide sufficient grounds (= motivi) for bringing an action without the need for the claimant to prove that actual damage has been suffered. Strict liability torts do not depend on the degree of care that the defendant used. The most common form of tort is the tort of negligence, but tort law also protects other interests, such as defamation, emotional distress (= danni morali) or invasion of privacy. OVERLAP (= coincidenza/ sovrapposizione) BETWEEN TORT, CONTRACT, CRIME Some torts are breaches of contract Ex: negligent driving by a taxi-driver, which causes injury to his passenger, will be: - tort of negligence; - breach of contract for failure to carry the passenger safety to the destination. Many torts are crimes Ex: if A steals B’s car, A commits: - a crime of theft; - a tort —> trespass to goods. 17 TYPES OF TORT The law of tort provides remedies for these wrongs: NEGLIGENCE Negligence is the unintentional (negligent) interference with another’s person or property. It emphasizes the breach of a duty (= violazione dell’obbligo) to exercise the appropriate standard of care, which results in damage or loss to another. The standard of conduct to be attained is that of the reasonable man (= buon padre di famiglia). In a claim for negligence it must be shown that: 1) defendant owned claimant a duty of responsible care; 2) defendant breached that duty; 3) defendant’s breach caused claimant’s injury; 4) injury (damage of loss) suffered by claimant was responsibility foreseeable (= prevedibile). If the claimant is able to show that the defendant was at fault with 1-4 requirements, the defendant will be liable (= responsabile) unless he is able to invoke a defence, 2 defenses are available: 1) contributory negligence —> claimant’s damage is caused in part by his own negligent actions; 2) assumption of risk —> the claimant consents to the risk and is at least partly at fault. TRESPASS (= violazione/ infrazione) Trespass is the intentional and direct interference with another person’s, land or property. There can be 3 forms of trespass: 1) TRESPASS TO PERSON Trespass to person includes: - assault (= minaccia di violenza fisica) —> this is putting someone in fear of suffering immediate physical force; - battery (= percosse/ aggressione)—> this is directly applying physical force to someone which causes pain or injury, or doing an act that is harmful or offensive without consent; - false imprisonment (= sequestro di persona) —> this is preventing someone from (= impedire a qualcuno di) exercising freedom of movement by someone without legal authority or justification. 2) TRESPASS TO GOODS Trespass to goods means intentionally or negligently interfering with the goods in the ownership or possession of another person. It includes touching, moving, or carrying goods away. 3) TRESPASS TO LAND Trespass to land means intentionally or negligently interfering with land which is in the possession of another person. Trespass to land may take 3 forms: - entering on the land of another; - remaining in the land of another; - placing or throwing any material object upon the land of another. The defenses available to a trespasser are: - consent —> in a claim for battery the defendant will not be liable if the claimant agreed to it and the action served a socially useful purpose; - necessity —> the defendant will not be liable if he can show that he was compelled by (= costretto da) the circumstances to prevent further harm from happening; - inevitable accident —> the defendant will not be liable if he can show that the accident could not have been avoided by exercising ordinary care and skill. 20 STARTING CRIMINAL PROCEEDINGS There are two way to commence (cominciare) criminal proceedings: 1) by charge (= accusa); 2) by information and summons (= informazione e citazione). 1) BY CHARGE In the charge procedure the accused is informed orally of the criminal charge. The accused can either be: - held on remand (= tenuto in custodia cautelare/ trattenuti fino al processo) —> when he is detained in police custody and later taken before the magistrates’ court; - released on bail (= rilasciato su cauzione) —> the accused is let out of police custody on strict conditions before trial at magistrates’ court in return of a large sum of money. The accused have the right to remain silent. 2) BY INFORMATION AND SUMMONS In the information and summons procedure: - the prosecution lodges (deposita) a document with the court, known as information, which sets out the alleged offence. - the court issues a summons, which requires the offender to appear before the magistrate’s court to admit or deny the offence. Depending on the severity of the offence, the case is heard - in the Magistrates’ Court if there are not serious offences (summary offences); - in the Crown Court if there are most serious offences (indictable offences). In the Magistrates’ Court, there are only the magistrates to decide. While in the Crown Court, there is a jury to decide question of fact and a trial judge to decide questions of law. PROCEDURE IN THE MAGISTRATES’ COURT Firstly, the magistrates answer to the defendant if he is guilty or not. 🔴 👿 If he says that he is guilty, the magistrates proceed to sentencing —> this is the case of the plea before venue hearing. = dichiarazione prima del processo). The defendant have to swear on the Bible. Then the accused can make a plea bargaining (= patteggiamento)*. * Plea bargaining means that the accused agrees to plead guilty (dichiararsi colpevole) in exchange for: - an offer of a lower sentence or - a promise by the prosecutor to present a less serious version of the facts against the accused. Finally, the magistrates make a decision, proven beyond reasonable doubt, and they will state the penalty imposed to the defendant. 🟢 😇 If the defendant makes a plea of not guilty (= si dichiara innocente), the magistrates may decide to deal with the case themselves or opt for the Crown Court. Then the defendant has the right to choose the court. PROCEDURE IN THE CROWN COURT Trial procedure in the Crown Court involves each party’s counsel (= avvocato/ consulente legale) eliciting testimony (= che selezionano testimonianze) in the questioning and answering method. Crown court trials involve (comportano) the presumption of innocence, meaning that the burden of proof (= onere probatorio) is always on the prosecutor to prove guilt. The accused has a right of silence. 21 THE STAGES OF CIVIL PROCEEDINGS The most important stages of civil proceedings are: PRELIMINARIES • ESTABLISHING POSSIBLE CLAIM —> depending on the type of case, the claimant must first establish whether he has a claim (diritto) by seeking (= cercando) legal advice from a solicitor. CRIMINAL TRIAL A Crown Court trial consists of the following stages: 1) ARRAIGNMENT (= contestazione dell’atto di accusa) —> it is the first part of the trial. The accused has to say if he is guilty or not. If he says that he is guilty, the judge will sentence him to a punishment. If he makes a plea of not guilty, the trial will proceed. 2) SWEARING IN THE JURY —> jurors have to swear on a holy book of their religion and give a true verdict according to evidence. Before a jury is sworn in (= fa giurare), the prosecution or defence is entitled to object (= ha diritto di opporsi) for cause to any of the jurors only if a good reason can be given for the objection. This procedure is known as challenge to jury. 3) PROSECUTION’S OPENING SPEECH —> counsel for the prosecution makes a short opening speech to the jury outlining (= delineando) the merit of the case. This speech includes the facts and the evidence that the prosecution intends to rely upon (= contare su). 4) PROSECUTION’S EVIDENCE —> the prosecuting counsel calls each of the prosecution witnesses, who give evidence from the witness box. In general, all evidence must be on oath. After that, the prosecution will call the police officer who arrested the defendant. 5) EXAMINATION-IN-CHIEF (direct examination) —> the questions asked to the witness must be non-leading questions, as opposed to leading questions (when the other part can reply with “no” or “yes”). It is a try to have a support from the witness. The witness can say only what he saw and heard, not what about other people said to him. 6) CROSS-EXAMINATION —> the witnesses pass to the defence counsel. Defence counsel may also do leading questions. The defence counsel can conduct a cross-examination for gain facts favorable or to create doubt upon the credibility of the witness. 7) RE-EXAMINATION —> counsel for prosecution can ask the witness other question to clear up matters arising from cross-examination. At this time, the defence counsel is allowed to make a submission (argument) on admissibility of evidence. In practice, the defence attempts to persuade the judge that no reasonable jury will say that the defendant is guilty. If the judge agrees with no case submission, he will order to the jury to find the defendant not guilty and the case will be dismissed. If the judges disagrees, the trials proceeds. 8) CASE FOR THE DEFENCE COUNSEL —> counsel for the defence makes an opening speech, and then calls defence witnesses who are examined-in-chief, cross-examined by the prosecution and re-examined by the defence. 9) PROSECUTION/ DEFENCE CLOSING SPEECH —> counsels for the prosecutions and defence make closing speeches (arguments) in which they outline their view of the mails point in the case. 10) JUDGE’S SUMMING UP —> the judge explains to the jury the relevant points of law. The judge will then ask the jury to retire and return a verdict for each of the charges (= accuse). 11) JURY DELIBERATION —> the jury will take a decision. If the jury fails to reach a verdict there will be a retrial (= nuovo processo), but if after the retrial the second jury fails, the prosecutions will drop the case (= si ritirerà il caso). 12) VERDICT —> the jury returns and announces the verdict of guilty or verdict of not guilty. Following a verdict of not guilty, the defendant will be acquitted (= assolto). 13) SENTENCE —> following a verdict of guilty, the judge proceeds to pass sentence (punishment) [= emettere una condanna]. Sentence is given orally by the judge and could be a combination of fine (= multa), custodial sentence or community sentences. APPEAL Appeal is the usual way of challenging a decision made by a criminal court. 22 • ASSEMBLING THE CASE —> if there is a valid claim, the claimant must instruct the solicitor and agree a fee arrangement (concordare un accordo sul compenso). The solicitor will then assemble the case with interviews and preparing documents, in order to instruct the barrister (= avvocato). • PRE-ACTION MATTERS —> the pre-action rules require the litigants to exchange information and documents in an attempt to settle their dispute without recourse to any court proceedings. The claimant (pretendente) provides the defendant with a letter before action setting out the claimant’s case, and the defendant may or may not provide his own response. At this stage, the parties should also consider an Alternative Dispute Resolution system (ADR); it is called out- of-court settlement (= risoluzione extragiudiziale)*. * Alternative resolution systems include: • NEGOTIATION —>it is an attempt to resolve their disputes with a compromise between the disputants alone. • MEDIATION —> the parties refer their dispute to an independent third party who will discuss the issues with both parties. • CONCILIATION —> this has part of an informal mediation and formal arbitration. The process is very similar to mediation but the third party can offer a non-binding opinion which can lead to a settlement. • ARBITRATION —> this is the last resort. Arbitration is the reference of a dispute to an independent third party (arbitrator) for adjudication, called the award. The arbitrator is usually chosen by the parties and he can be a lawyer or a businessman or someone with technical knowledge. CIVIL LITIGATION • STARTING PROCEEDINGS —> if the pre-action matters have not solved the case, civil proceedings will start. Court proceedings start when the claimant issues a claim form (= modulo di richiesta), so when the claimant sues (= denuncia) the defendant (convenuto). He will choose the court. It can be the County Court or High Court, depends upon the complexity of the case and the amount in dispute. Proceedings are usually started in the County Court. • STATEMENT OF CASE —> the particulars of the claim, called statement of the case, set out the nature of the claim, the remedy sought (cercato), the amount of money claimed, are used by the court in deciding how allocate the case. • DEFENDANT’S RESPONSE —> in response to the claim form, the defendant must • admit the case; • defend the claim or • file acknowledgment of service (the defendant needs more time to prepare a defense). • DEFENDANT JUDGMENT —> if the defendant takes no action, the claimant can ask the court to enter a default judgement against defendant. Most cases end at this point. • ALLOCATION —> once the court has received the defendant’s defense, the judge will transfer the case to one of three tracks: • the small-claims track; • the fast track or • the multi-track. There are several factors that the judge have to follow to choose the track (come agire), like value of claim, complexity of facts or evidence. This case management (= gestione dei casi) allows the court to try a number of strategic measures that may help the resolution of the case without the need for trial: • offers to settle by payment of damages into court —> the defendant pays a sum of money into court as an offer of final settlement by the claimant. The claimant can decide to accept the money or not; • offers to settle using ADRs —> the defendant who refuses an offer to settle a case in this way incurs cost penalties; • injunctions —> the judge orders the claimant and the defendant to stop doing something. CIVIL TRIAL 25 5. Multimodal Discourse Analysis 6. Contrastive Rhetoric 7. Interactional Sociolinguistics 8. Corpus Analysis Using these methods it’s possible to study the language of law created by different texts or genres of legal discourse (che è una pratica sociale normativa). 5. Critical discourse analysis is an interdisciplinary approach to the study of discourse and it views language as a social practice. This method highlights issues of power asymmetries, exploitation, and structural inequities in domains such as education and politics. It combines three level of discourse analysis: 1. Analysis of language text 2. Analysis of discourse practice 3. Analysis of discourse events 2. The focus of genre analysis is on typified and regularized forms of discourse, forms that are the results of discourse strategies which become standard or conventional practice within (all’interno) a given social context in which they are produced. 3. Narrative analysis focuses on a cluster (insieme) of analytic methods used for interpreting texts or visual data that have a storied form. 4. Conversation analysis id concerned with social interaction in situations of everyday life including verbal and non-verbal conduct. Conversation Analysis is influential in many areas, such as sociology, linguistics, interactional sociolinguistics and discursive psychology. 5. Multimodal discourse analysis deals with multiple modes of communication such as text, colour and images. It is a method that looks at how semiotic meaning (significato semiotico) is created through the interaction of multiple modes of communication. 6. Contrastive Rhetoric also known as intercultural rhetoric, is concerned with how a person's native language ( L1 ) and their culture influence writing in a second language ( L2 ). 7. Interactional sociolinguistics is concerned with the ways in which language users create meaning via social interaction. Strategies for this kind of analysis include politeness and framing. 8. Corpus analysis deals with quantitative and qualitative data in language use through computer programmes. This method that is widely used in English for Academic Purposes (EAP) can be used to identify differences in word choices, grammatical structures and to describe and compare linguistic features in a variety of discourse types. Other corpora are British National Corpus (BNC) and Corpus of Contemporary American English (COCA). 26 3. Defining legal language as text, genre and discourse Legal language is a broader term (termine più ampio) used to describe a variety of legal texts or genres representing legal discourse in areas of institutional and sociocultural activity of the law. Therefore legal text reflect the diversity of law itself because every context has its own language. Legal texts can also be defined as special-purpose texts, language for specific purposes (LSP), sub-language or specialized language. 3.1 RESEARCH APPROACHES TO LEGAL LANGUAGE As we can see during the years many issues of legal language have been widely examined by authors from diverse perspectives (si intende i vari metodi analizzati poco sopra). In these approaches the analyses of legal language come from the areas of written and spoken discourse and define differences between legal language and general language, compare legal language of different countries and reveal similarities and differences between different genres of legal texts. 3.2 VARIETY OF GENRES OF LEGAL TEXTS FORMING (CHE FORMANO) LEGAL DISCOURSE There are many different genres of legal text that can be used in legislative, judicial, contractual, or other context, in general we can speak of: • Legislative texts produced by legislators • Judicial texts produced by judges • texts produced by a lawyer or notary as private legal documents such as contracts • texts produced in the court system • texts produced outside of the court system In addition there are: • Academic text • Media text In all these situation the legal discourse is associated with a specific type of language use. If we analyze the characteristics of these text varieties and genres we will see some topics that are connected with the idea of law as a professional and social practice and that legal texts depend on the relationship between discourse and action. 4. General characteristics of legal texts and genres Different genres of legal texts have different functional, structural and linguistic properties. 4.1 FUNCTIONAL PROPERTIES Legal text have different functions: Operative or Prescriptive function is connected with the fact that judgments, contracts and other things share the characteristic of biding. Expository or Descriptive function is connected with the fact some texts express the resolution of a client’s case or explain the facts of cases. Closely related to prescriptive function is the notion that legal texts are performative (legal language is not just words but actions) in this case the performative verbs like promise, request, and order have illocutionary force. 27 4.2 STRUCTURAL PROPERTIES OF LEGAL TEXTS Legal texts also have a particular structure like a standard format or organizational layout. The point about structure of legal texts is that they are highly formulaic. 4.3 LINGUISTIC PROPERTIES OF LEGAL TEXTS The legal texts have their lexical and grammatical features. This features are the result of the historical development of the language that was influenced by Latin and French. LEXICAL FEATURES Legal English vocabulary is divided into two categories: 1) Purely technical terms 2) Terms with uncommon meanings 1)Those that are used exclusively in legal language 2)Those terms that are borrowed from ordinary language and used with highly specialized meanings in law Other important features of legal English texts are characterized by formality and excessive attention to detail. They include: • Foreign words (from Latin or French) • Archaic compound adverbs and prepositional phrases • Pleonasms • Ritualized world forms or parallelisms • Performative verbs • Vague Words GRAMMATICAL FEATURES • Extremely long, complex sentences with many levels of subordinating clauses • Nominalizations • Impersonal constructions, passive contractions and multiple negations. • Complex conditionals and hypothetical formulations 5. From traditional legal English writing style to plain language The linguistic properties of the legal English derive not only from the historical development of English law but also from a traditional style of English legal writing used across the centuries, pejoratively known as LEGALESE. It is reader-unfriendly and characterized by archaic usage, prolixity and redundancy. Because of the complexity and technicality of this writing style, there have been pressures for reform by members of the Plain Language Movement (it began in U.S.A. in the 1970s to promote plain language in public and private sectors). This movement inspired the Plain Language Association International Network (PLAIN) and the clarity international association. The proponents are lawyers, judges and parliamentary draftsman that argue for clarity, simplicity and precision in drafting legal documents. 30 UNIT 5 LEGAL DISCOURSE AS SPECIAL-PURPOSE TEXTS AND GENRES: ISSUES AND APPLICATIONS 1. Understanding genre within different traditions of genre studies The concept of genre is a key term in legal communication because different academic and professional genres (spoken and written) exist to fit the legal discourse community. There are different definitions of genre but the most influential definition come from three different traditions of genre studies, these 3 are: • North American New Rhetorical Genre Studies - RGS • Australian System Functional Linguistics - SFL • English for Specific Purposes - ESP 1 For the first tradition the textual forms that are usually called genres are traces of a recurring social action, and recurrence makes genre a dynamic entity which arises (nasce) from a recurrent social action. 2 The second tradition describe a genre in this terms: Regularities of staged, goal oriented social processes The systemic foundation of genre is based on the work of linguist Michael Halliday. 3 Studies in the ESP tradition define genre as a class of communicative events with some shared set of communicative purposes. In general we can say that according to also other characteristics of SFL and ESP traditions of genre studies that they put more emphasis on identifying in texts element like register, structures and conventions in academic and professional contexts. 1.1 DISCOURSE ELEMENTS OF LEGAL GENRES IN ACADEMIC AND PROFESSIONAL CONTEXTS We need to identify discourse elements of legal genres in academic and professional contexts. These elements derive from the theory of social construction according to which (which holds) social phenomena are shaped by human interaction. This means that the discipline of law is maintained both by academics (professors and others in all areas of law) and practitioners (judges, lawyers and other legal officers) as they interact with each other. 2. ESP and genre studies: discourse community, communicative purpose, move In academic and professional settings (contesti), ESP traditions focus on the linguistic forms and discourse structures in the context of specific texts or genres and relate (mettono in relazione) those forms and structures to discourse or disciplinary communities. 2.1 ACADEMIC GENRES ESP genre studies derived mainly form Swales’ seminal work on the discourse structure and linguistic features. He describes genre as: “a class of communicative events, the members of which share some set of communicative purposes…..” 31 This definition connects the purpose achieved by a genre with the structure of the genre and suggests that the comunicative purpose is a key factor in deciding whether (se) a text can be classified as a particular genre defined by the content and style of its discourse community. According to Swales, communicative purposes are described by functional moves and steps, that are textual segments (with their own linguistic forms) necessary to classify a text as a member of a particular genre. The concept of genre of ESP tradition goes hand in hand with the various discourse communities that create it. 2.2 PROFESSIONAL GENRES In professional context ESP analysis of discourse structures enables us to understand the dynamic complexities of professional and disciplinary communities through language use. In the book Analyzing Genre the author says that genre in linked primarly with communicative purposes and that this purposes determinate the structure of the genre so if the purpose changes the genre will be different. In the book always the author tries to provides a comprehensive definition of genre considering all the three traditions of genres studies but through his deduction we can say that communicative purposes are problematic to define a genres because they can evolve over time including variations across cultures. 2.3 UNDERSTANDING LEGAL GENRES FOR THEIR COMMUNICATIVE PURPOSES: EXAMPLES Now we will think about the communicative purposes or functions of legal genres that are multiple and complex. Esempi pag. 117 2.4 COLONIZATION OF GENRES: APPROPRIATION AND DISCURSIVITY The communicative purpose of a genre, such as narrating, instructing, informing and advertising also depends on the use of other related genres called systems of genres, genre networks or genre colonies. The reference to a genre colony illustrates a further process called appropriation. This is when “generic resources are exploited (sfruttate) and appropriated create hybrid forms”. This dynamic complexity brings to the notion of interdiscursivity in Critical Genre Analysis CGA, signifying that there are overlapping levels of discourse and meanings in disciplinary, professional and institutional language. Interdiscursivity is increased by the role of multimedia and web-mediated communication. 3 Variation across academic disciplines The nature of genres is complemented (completata) by an understanding of variations across academic disciplines that influence all types of academic and professional discourse. Disciplines can be described in term of academic tribes, which have their own territories and knowledge tools. The disciplines are classified according the subject of study and are divided into four fields: 1. Hard-pure disciplines (Chemistry) 2. Soft-pure disciplines (Philosophy) 3. Hard-applied disciplines (Medicine) 4. Soft-applied disciplines (Business) It is not easy however draw precise boundaries between these 4 categories. 3.1 THE EPISTEMOLOGY OF LAW: VARIETY OF LEGAL RESEARCH STYLES IN ACADEMIC DISCOURSE The discipline of law provides different research style, in general research can be defined as a systematic process of investigation that increases knowledge in any one discipline. In law this describes three main styles of research done by legal scholars: • Doctrinal research • Non-doctrinal research • Comparative research 32 Doctrinal legal research (pure theoretical legal research) concerns the formulation of legal doctrines in particular areas of the law , such as contracts , and the nature of justice . Scholars use this method focus on philosophical questions about the nature of law for this reason this method of research is qualitative, because it does not use any statistical analysis of data. Non-doctrinal legal research (socio-legal research or law in context) uses empirical data to provide an understanding of the law in the real world, such as providing empirical analyses of criminal justice processes. For this reason, non-doctrinal researchers employ methods taken from other social science disciplines such as Business , Economics etc. Comparative legal research deals with the study of foreign law that arises from legislation , cases and doctrine by providing an understanding of the way law develops in different countries and systems . This style of legal research can be either doctrinal or non doctrinal, or a combination of both. 3.2 INTERDISCIPLINARY OF LAW We have seen how empirical legal researchers employ methods from the soft-pure (humanities discipline) and soft-applied sciences (social sciences discipline) to answer questions about the operation of law in context. This not only emphasises that the law is no longer an autonomous discipline, but also tells us that the field of legal studies is undergoing rapid changes and increased specialization. The result is that legal scholarship has made place for a more interdisciplinary research activity than in the last few decades. We can see this by the complex questions about medico-legal dilemmas in clinical practice, where useful insights are combined from the law, the social sciences, and biomedical research data. 4. Working with language in ESP: metadiscourse There are different analytical methods to see how language works in English for Legal Purposes. One such method is metadiscourse, which provides powerful insights about the way legal writers interact with their readers and communicate effectively. Metadiscourse is often conceived as enabling speakers or writers : • to interact with their audience • to establish interpersonal relations , and • to evaluate content of their texts Metadiscourse is categorised as interactive metadiscourse and interactional metadiscourse, helping orient the reader in the interpretation of information through a variety of linguistic resources, called metadiscourse markers (marcatori di metadiscorso) 35 UNIT 6 STUDYING ACADEMIC LEGAL GENRES Reviewing genre As we saw in Unit 5, genres are created by the discursive or disciplinary communities to which they belong and carry out specific purposes within those communities. So, when we write in an academic legal genre, we need to examine the discourse structure and the use of language (called lexico-grammatical forms) in order to identify the communicative activity or purpose, as well as the conventions with which the genre is associated with by members of the legal community. Communicative purposes are described by functional moves and passages, which are textual segments necessary to recognize a text as a member of a particular genre and have its own linguistic forms. What you are guided through The following sections guide you through the discourse analytical structure of academic legal genres (the abstract of the research article, the introduction of the research article, the research article, the question on the legal problem and the essay) for their communicative moves and use of language. 1. The Research Article Abstract In English academic prose, abstracts are an essential part of research article (RA) writing and are produced primarily for and by established academics. Abstracts precede academic research articles and are often written in limited length (almost 200-300 words). They present a summary and a reflection of the entire article (Swales 1990; Bhatia 1993), and persuade the reader to read on and promote author research (Hyland 2004) within a particular disciplinary community. 1.1 TYPES OF ABSTRACTS Depending on their functional aims, abstracts are often classified into indicative or descriptive and informative. Indicative abstracts written in the social sciences and humanities outline the general idea of the text and focus on the research findings without making judgements about the work or providing results or conclusions. informative abstracts written in the hard sciences tend to be longer because they provide an informative summary of the research by explaining important findings and evaluating the work. 1.2 STRUCTURE Is necessary use particular kinds of moves to provide a well-written abstract. A successful law research article abstract will typically contain some or all of the moves exemplified in the discourse structure models below and each move performes a particular communicative purpose or function: 36 MOVES: 4-Moves Structure (Bhatia) Introducing the purpose - Describing the Methodology - Summarizing the Results - Presenting the Conclusions 5-Moves Structure (Hyland) Introduction - Purpose - Method - Product - Conclusion These move patterns may often vary in their structural order or sequence. Depending on the method of legal research (doctrinal or non-doctrinal), these structure models can give shape to indicative or informative law abstracts. 1.3 LANGUAGE From the point of view of language sentences and clauses are important to signal particular moves. However, it’s common that some moves are placed in the same sentence (embedded moves). In the same way, moves can also be repeated (recurrent or recycled moves) Sometimes the author can also recycle move patterns to gain reader interest and to be more persuasive. Using reporting verbs authors can give to thei legal research. These verb forms are known as: • Research acts • Cognition acts • Discourse acts 1. The Research Article Introduction The introduction of academic journal articles establishes the scope, context and significance of the research. 2.1 STRUCTURE In his C.A.R.S. (Creating Research Space) model, Swales presents the organizational pattern of introductions and suggests that research articles (RAS) are all competing for space. He says that introductions have to start by: - Establishing significance of the research field (Establishing a Territory), - Providing a rationale for their research in terms of that significance (Establishing a Niche) - Showing how the paper will occupy and defend the niche that has been created (Occupying the Niche). Moreover, some or all of the moves can either be found in the doctrinal or non-doctrinal method. 2.2 LANGUAGE These moves and steps are sensitive to forms of expression, also to the choice of reporting verbs. So, we can see the functional use of lexico-grammar that signals particular moves in law research article introductions (the moves can be seen by the use of some form expressions or by the use of reporting verbs both used for a particular purpose): • Move 1- Establishing a Territory [the situation] Purpose-> [Demonstrating that a general area of research is interesting, problematic, or relevant for investigation by providing statements about the current state of knowledge] 37 • Move 2 - Establishing a Niche [the problem] Purpose-> [Making a clear argument that your particular piece of research is important and has value] • Move 3 - Occupying the Niche [the solution] Purpose-> [Announcing the means by which your study will contribute new knowledge on the topic] In order to persuade readers of the validity of their scholarly work, legal authors writing introductions make adequate linguistic choices through metadiscourse rhetorical features, which orient the reader in the interpretation of the information. As seen in Unit 5, metadiscourse resources include, for instance: • transitions (and, but, moreover, however, similarly) to express semantic relations between clauses, • frame markers (first, finally, to conclude, my aim is to) to express discourse acts and text sequences, • hedges (may, could, perhaps, possible) to mitigate writer's full commitment to proposition, • boosters (clear, in fact, definitely, sure) to emphasise writer's certainty about proposition, • attitude markers (surprisingly, unfortunately) to express writer's attitude to proposition, and • self-mentions (I, we, our) to make explicit reference to author and other less-explicit items for author reference (this study/paper). In addition, citations or metadiscourse evidentials provide an important source of intertextuality, primarily in the Introduction and Discussion sections of legal research articles. Citations do different jobs because they allow authors: • to gain approval of new claims • to demonstrate the novelty of research done • to extend previous research. Whenever (ogni volta) authors refer to outside sources of information, they cite the sources from which they drew information. There are different ways to cite an author and in legal field coexist the two principal ways integral and non-integral citations. In integral citations, the name of the author in the reference has an important role in the grammar of the reporting sentence (it is placed in subject position), while in non-integral citations the name of the cited author appears in parenthesis or footnote, or a number refers to the name, which is given in the List of References. 3. The Research Article (RA) An academic legal (full-length) research article (RA) reports the results of an original study and is published in a peer-reviewed scholarly journal. The research article is the primary source to access the most recent research done for and by scholars. An original article contrasts with other types of sub-genres used across the legal sciences, such as: • review articles • letters to editor • news and perspectives 40 UNIT 7 STUDYING PROFESSIONAL LEGAL GENRES UK STATUTE UK Acts of Parliament or statutes are built up from a number of standard components. STRUCTURE 1) SHORT TITLE —> this is the name by which the Act may be cited and sits outside the main body of text; 2) OFFICIAL CITATION —> each Act passed in any one year is given its own Chapter number passed in that year; 3) LONG TITLE —> this sets out in general terms the purpose(s) of the statute; 4) ROYAL ASSET (or DATE OF PASSING) —> it appears in square brackets after the long title. It means that the statute become law on the date when they receive royal asset. The significance of Royal asset is that it is also the date of commencement (the date when the Act takes effect); 5) ENACTING FORMULA —> this is shown by the introductory words expressing the nature of the Act as a command (or force of law) of the sovereign legislature, namely the “Queen in Parliament”; 6) MAIN BODY —> the main body is divided into: • sections —> they contain different rules of law. They can be subdivided into subsections; • paragraphs —> their purpose is to enable provisions (= norme) to be referred to easily. They can be subdivided in subparagraphs; • headings —> each heading gives a brief description of the contents of each section or part; 7) INTERPRETATION SECTION —> this section is found at the beginning or the end of the Act or Part and provides stimulative definitions of technical legal terms used in the statute, usually using simple tense “means” instead I’d the modal “shall” (“shall mean”), as was the conventional use of earlier statutes; 8) COMMENCEMENT —> this is the date when the Act takes effect; 9) As with 1), the short title of Act is given by the citation clause in 9) and declares the extent to which the law applies. LANGUAGE UK statutes are characterized by the following language features: • IMPERSONALITY —> Statutes are conventionally written in the impersonal style, using the third person singular or plural as a genetic genetic subject; • DIRECTIVE FUNCTION —> Statutes are addressed to, and are therefore binding on, the people in general. This function is expressed in language which imposes duties/ obligations and confers rights, meaning that it is imperative (shall, must), prohibitive (shall not, must not, may not) or permissive (can, could, may, might) of the conduct affecting the generic subject. This function is performed by the overall syntactic structure of provisions - legal subject, legal action, case, condition; • ENACTING FORMULA and ANTIQUATED WORDS —> the directive function can be seen in the enacting formula which gives the statutory text the force of law for the people at large. The formula contains antiquated words and infrequent expressions: • BE ENACTED (passive imperative which suggests the binding force of statutes) • BY and WITH (2 prepositions with similar meaning are used to add rhetorical emphasis to the idea being expressed); • SAME (used instead I’d the modern pronoun “them”); • PASSIVE —> the use of the passive constitutions has the effect of depersonalizing the communication because the subject who performs the action is not known or specified. The passive focuses on the action rather than the agent(s) involved. The passive voice permits an indirect and formal tone in which express generally of the provision; 41 • ORDINARY WORDS rather than TECHNICAL WORDS —> statutes tend to be characterized by ordinary English words and expressions. Technical words are avoid or explained. Also Latin terms are avoided (l’uomo di chiesa, a cui piace usare espressioni in latino, verserà una lacrimuccia 😂 ); • ARCHAIC LEGALISTIC WORDS —> words such as aforesaid (= summenzionato), herein (= ivi), therein (= in ciò) are avoided and replaced with modern English terms; • NOMINALIZATION; • VAGUE WORDS and EXPRESSIONS —> they give a choice to the interpreter of the provision as to their degree of meaning (ex: appropriate measures, reasonable conduct, sufficient cause); • SYNTAX —> this is concerned with the parts of the provisions which confer rights and powers, or impose duties and liabilities (= oneri/ responsabilità) on the recipient of the rule; • INITIAL CASE DESCRIPTION and QUALIFICATIONS —>there are 2 interacting elements which characterize the cognitive structure of legislative provisions. They are: • case descriptors —> there are adverbial clauses placed at the beginning of the provision (if, when, where) to indicate the necessary conditions, case or contingencies to be satisfied there because the law is not of universal application • qualifications —> these are qualifying phrases of various kinds which are placed at various points in the main clause. Case description and qualifications interact with the main clause by forming the whole syntactic structure of the provision, which confers rights and powers, or impose duties and liabilities of the recipient. • PARAGRAPHING —> legal drafters are careful about using paragraphing to set out cases and conditions together with the legal subject and the legal action, as the essential components of provisions. As part of plain language techniques, the function of the paragraphing system is to aid readability of the provision, so that the logical relationships between in/dependent clauses in the sentence are revealed at a glance than would otherwise be without such a system. This way of organizing the contents of the statute by paragraphing ensures that the information is presented in a way which aids reading and understanding, and avoids potential ambiguity; • MODAL AUXILIARY VERBS —> modal verbs express the legal effect of the rules in a variety of legal documents (statutes, judgments, wills, contracts). In the language of statutes the modals shall, must and may are the legal action verbs that are mainly associated with the notion of deontic modality, used to express duty/ obligation, permission or authorization. Particular rule-making modal verbs that are prohibitive or permissive in function are often used to prescribe certain actions by enforcing observance of the rule of law: • prohibitive rule-making verbs —> ought not, may not, cannot, must not, should not; • permissive rule-making verbs —> ought, may, can, must, should. IMPERATIVE AND PERMISSIVE LANGUAGE: OTHER MODALITY PHRASES Further opportunities are provided by statutes in which deontic modality is marked clearly by the use of the other phrases, such as: SHALL The modal is used in the (future) imperative (deontic) sense to impose duty or obligation on the legal subject to whom it refers. But shall may also serve other purposes, such as: - to express condition subsequent (= conseguenti) --> ex: if an application is granted, the officer shall within 1 week of such granting give notice of the requirements; - to confer benefits or rights —> ex :a person shall have the right to…; - in definition sections —> ex: in this Act court shall mean… MUST Contemporary Plain Language drafters tend to replace shall with imperative must and to replace shall with the present tense, since the law speaks at the moment it is being enacted. MAY This modal is used to indicate deontically that the person to whom it relates is given a discretion/ permission/ authorization as to whether a right, power or privilege should or should not be conferred. 42 2. UK Judgment In the following sections you are guided to read and understand an English judgment by exploring the functions of the various component parts that form the textual structure and language of the genre. The following appellate case is a civil judgment available from the British and Irish Legal Information Institute (BAILII) court and tribunal database. BAILII provides access to the most comprehensive set of British and Irish primary legal materials that are freely available online. Pag 150,151 legal case 2.1 STRUCTURE: EXPLANATORY NOTES TO FIND YOUR WAY ROUND CASE The case gives us different pieces of information. 1 We are told of the court (Court of Appeal) in which the case was heard (in cui è stata esaminata la causa), how the case came before the court (ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL), and the address of the Royal Courts of Justice on Strand. The case is given a neutral citation number. The abbreviation Civ indicates the type of case (civil) and the year (2008) of the decision. The acronym EWCA indicates the England and Wales Court Appeal jurisdiction, and the number 120 is the page of the English Law Reports in which the case can be found. 2 The material then gives the name and title of the judge (Lord Justice) who heard the case. 3 The case lists the names of the parties. The first party listed is the appellant (SUDAN) and the second party is the respondent or, sometimes, the appellee (SECRETARY OF STATE). 4 The parties' names are given in conjunction with the name of counsel (Mr Jafar), the barrister, and the instructing solicitors (CLC). 5 The material then continues by setting out the historical (factual issues) of the case, which includes numbered paragraphs (1. 2. etc.). In particular, para. 1 introduces the application for permission to appeal and continues with an historical outline of the facts in para. 2. In para. 3 the factual issues become the object of the procedural details of action, indicating how the dispute came before the Appeal Court - you are told about some of the factual issues on appeal with the words the second of those objections is still pursued. Procedural details of litigation continue along para. 4, 5 and 6, with the judge emphasising the ground of appeal (that this was a more detailed and circumstantial investigation --) upon which his evaluation is based. Imposing duty - X has a duty/obligation to do something; - X is required to; - X is compelled to (= obbligato a) = X has a duty to = shall/ must Negating duty - X is not required to - X need not Conferring/ Negating right-benefit - X is entitled to - X is not entitled to Granting authorization, discretion, permission - X is authorized to - X has discretion to - X is permitted to - X has power to - X is allowed to = may 47 Multilingualism: The language of the European Union Global linguistic diversity Approximately 7000 languages are spoken globally today. However, half of the world's population shares just 6 native languages, and some 90 % of all languages may be replaced by dominant ones by the end of the century. Running a multilingual EU In the EU, multilingualism is understood as “the ability of people to engage with more than one language in their day-to-day lives”. The EU's multilingualism policy has 3 goals: • to encourage language learning and promote linguistic diversity in order to prevent discrimination between citizens whose languages are spoken by a small number of people; • to give citizens access to EU legislation and information in their own languages; • to promote a multilingual economy. All language versions of an EU law have the same legal value and no legislation could enter into force until it had been translated into all official languages of the EU. Crucially, the provisions relating to the EU language regime can only be changed by a unanimous vote in the Council of the EU. Preserving diversity The harmonious co-existence of 24 official languages is one of the most distinctive features of the European project. Multilingualism is not only an expression of the EU countries' cultural identities but it also helps preserve democracy, transparency and accountability (= responsabilità/ affidabilità). effective multilingualism can only be achieved if ways are found for citizens and institutions to communicate with each other. To reach this goal EU: • supports language learning in the Member States; • creates, maintains and expands interpretation and translation services. Language learning The EU is committed to promoting language learning but has limited influence over educational and language policies, as these are the responsibility of the individual EU countries. A 2012 poll suggests that a slim majority of Europeans (54 %) can hold a conversation in at least one foreign language, but worryingly, nearly half of all Europeans (46 %) cannot, and only four in 10 pupils attain the basic level of competence allowing them to have a simple conversation in a foreign language. Multilingualism in the European Parliament The European Parliament is committed to ensuring the highest possible degree of multilingualism in its work. Based on the 24 official languages that constitute the public face of the EU, the total number of linguistic combinations rises to 552, since each language can be translated into the 23 others. Currently, over 1 000 staff employed in translation and over 500 in interpretation care for the translation and interpretation needs of the 751 Members of the European Parliament. Verifying the linguistic and legislative quality of the texts is the job of the Parliament's team of 75 lawyer-linguists. 48 Internally, the EU institutions mostly use just 3 working languages: English, French and German. The overall cost for delivering translation and interpretation services in the EU institutions is around €1 billion per year, which represents less than 1 % of the EU budget or just over €2 per citizen. Following the success of the European Year of Languages (2001), the Council of Europe designated 26 September as the European Day of Languages. 49 THE CHARTER OF FUNDAMENTAL RIGHTS DEFINITION The Charter of Fundamental Rights sets out the basic rights that must be respected both by the EU and the Member States when implementing EU law. It is a legally binding instrument that was drawn up in order to expressly recognize, and give visibility to, the role of fundamental rights in the legal order of the Union. LEGAL STATUS The Charter of Fundamental Rights of the EU was proclaimed in Nice in 2000. After being amended (= modificato/ rettificato), it was proclaimed again in 2007. The Charter was a mere declaration of rights until the adoption of the Treaty of Lisbon (2009). Now the Charter constitutes primary EU law; as such, it serves as a parameter for examining the validity of secondary EU legislation and national measures. BACKGROUND With the establishment of the European Community, a problem has arisen: if European law was to prevail even over domestic constitutional law, it would become possible for it to breach the fundamental rights granted by national constitutions. In response to this, the German and Italian constitutional courts each adopted a judgment in which they asserted their power to review European law in order to ensure its consistency with constitutional rights. Then, when the Court of Justice ensured a level of protection of fundamental rights substantially similar to that required by the national constitution, there was no need to verify the compatibility of every piece of Community legislation with national constitutions. However, the absence of an explicit, written catalogue of fundamental rights, binding on the European Community and easily accessible to citizens, remained an issue of concern. 2 main proposals were made with the aim of filling this legislative gap: 1) access of the European Community to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) —> but the Community lacked the competence to accede to the Convention. The Community could access to ECHR after the entry into force of the Treaty of Lisbon; 2) adoption of an own Charter of Fundamental Rights, granting the Court of Justice the power to ensure its correct implementation. THE DRAFTING PROCESS The main purpose of the Charter was to make the overriding importance (= primaria importanza) of fundamental rights more visible to EU citizens. The main sources of inspiration for the drafters of the Charter were: • the ECHR (European Court of Human Rights); • the constitutional traditions of the Member States; • the European Social Charter; • the Community Charter of the Fundamental Social Rights of Workers. The body that drafted the Charter (composed by representatives of the of the heads of state or government and other experts) ensured the representation of the views of citizens and civil society. CONTENT The Charter of Fundamental Rights is divided into 7 titles: