Constructing Legal

Discourses and Social

Practices
Constructing Legal
Discourses and Social
Practices:

Issues and Perspectives

Co-Editors

Girolamo Tessuto, Vijay K. Bhatia,

Giuliana Garzone, Rita Salvi
and Christopher Williams
Constructing Legal Discourses and Social Practices:
Issues and Perspectives

Series Editor: Girolamo Tessuto

Co-Editors: Vijay K. Bhatia, Giuliana Garzone, Rita Salvi
and Christopher Williams

This book first published 2016

Cambridge Scholars Publishing

Lady Stephenson Library, Newcastle upon Tyne, NE6 2PA, UK

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

Copyright © 2016 by Girolamo Tessuto and contributors

All rights for this book reserved. No part of this book may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any means,
electronic, mechanical, photocopying, recording or otherwise, without
the prior permission of the copyright owner.

ISBN (10): 1-4438-8907-5

ISBN (13): 978-1-4438-8907-0
 TABLE OF CONTENTS

List of Tables ............................................................................................ viii

List of Figures.............................................................................................. x

Series Editor’s Preface................................................................................ xi

Introduction .............................................................................................. xiii

Girolamo Tessuto

Part I: Multi-voiced/Dialogic and Conceptual Analyses of Legal

Discourse

Chapter One ................................................................................................. 2

Polyphony and Dialogism in Legal Discourse: Focus on Syntactic
Negation
Giuliana Garzone

Chapter Two .............................................................................................. 28

Conceptualising Corporate Criminal Liability: Legal Linguistics
and the Combination of Descriptive Lenses
Jan Engberg

Part II: Identity, Diversity, Equality and Justice in Legal Discourse

Chapter Three ............................................................................................ 58

Freedom from Fear and Want: Communicating Language Rights
Tarja Salmi-Tolonen

Chapter Four .............................................................................................. 88

Legal Necessity or Competitive Advantage: A Critical Analysis
of Workplace Diversity Initiatives in Hong Kong
Aditi Bhatia
vi Table of Contents

Chapter Five ............................................................................................ 106

A Corpus-based Discourse Analysis of Refugee in EU Legal Texts
Giuseppe Balirano and Maria Cristina Nisco

Chapter Six .............................................................................................. 129

Regulating the Law of Seeds: A Comparative Analysis of Social
Representations in Legal versus Ecological Discourses
Marilyn Pasqua

Part III: Judicial and Out-of-Court Discourse

Chapter Seven.......................................................................................... 146

Multiple Negatives in Legal Language: The Case of English, Italian
and Spanish
Stefano Ondelli and Gianluca Pontrandolfo

Chapter Eight ........................................................................................... 171

Argumentative Strategies in the Judgments of the European Court
of Justice: Connectors in French and English
Silvia Cavalieri and Chiara Preite

Chapter Nine............................................................................................ 191

Delivering Justice: Do Mediators and Lawyers Speak the Same
Language?
Lesley Allport

Chapter Ten ............................................................................................. 209

The Language of Insurance Claims Adjustments as Paralegal
Communication: Accident Reports Acting as Legal Depositions
Glen Michael Alessi

Part IV: Legal Discourse in Internet-enabled Communication

Chapter Eleven ........................................................................................ 230

Reputation Management and the Fraudulent Manipulation of Consumer
Review Websites
William Bromwich
 Constructing Legal Discourses and Social Practices vii

Chapter Twelve ....................................................................................... 250

Client Reviews of Lawyer Performance in Sociolegal Networking Media:
An Appraisal Analysis
Anna Franca Plastina

Chapter Thirteen ...................................................................................... 267

How the Law is Responding to a Changing Society: A Comparative
Linguistic Analysis of Texts on Cybercrime
Judith Turnbull

Contributors ............................................................................................. 287

Index ........................................................................................................ 293


















 LIST OF TABLES

Table 1-1 UK Supreme Court judgments: corpus details

Table 1-2 Details of control corpus: NL CADIS Sub-corpus and L CADIS
Sub-corpus
Table 1-3 Results of corpora analysis
Table 2-1 Similarities and differences in the statutory presentation of
Corporate Criminal Liability in German, Danish and Spanish context
Table 3-1 Size of samples and vocabulary
Table 3-2 Interactive resources
Table 3-3 Distribution of transitional marker AND
Table 3-4 Occurrence of BUT
Table 3-5 Interactional resources (framework modified from Hyland
2005: 49)
Table 3-6 Occurrence of modal auxiliary verbs in data
Table 3-7 Occurrence of shall
Table 3-8 Occurrence of may
Table 5-1 Most frequent lexical items in the EU-ProgrCorpus
Table 5-2 Concordances of the key-word Eu*/Union in the EU-
ProgrCorpus
Table 5-3 Concordances of the key-word Eu*/Union in the EU-
ProgrCorpus
Table 5-4 Concordances of the key-word national* in the EU-
ProgrCorpus
Table 5-5 Concordances of the key-word refugee* in the EU-ProgrCorpus
Table 5-6 Frequencies of tokens adopted as key-words in the EU-
LexCorpus
Table 5-7 Concordances of the key-word refugee* in the EU-LexCorpus
Table 5-8 Collocates of refugee* pertaining to the financial semantic
domain in the EU-LexCorpus
Table 5-9 Concordances of refugee* pertaining to the financial semantic
domain in the EU-LexCorpus
Table 5-10 Concordances of the key-word returnee* in the EU-LexCorpus
Table 5-11 Concordances of the key-words national* and person* in the
EU-LexCorpus
Table 6-1 Most common attributes related to “seeds”
Table 7-1 Right and wrong
 Constructing Legal Discourses and Social Practices ix

Table 7-2 Negatives in the Italian corpus

Table 7-3 “Non” preceding a noun, adjective or adverb in the Italian
corpus
Table 7-4 Non lag7 non
Table 7-5 Non lag5 negative prefix
Table 7-6 Negatives in the Spanish corpus
Table 7-7 No lag7 no
Table 7-8 No lag5 + element with negative prefix
Table 7-9 Say and Don’t Say
Table 7-10 Negatives in the English corpus
Table 7-11 Not lag7 not
Table 7-12 *not lag5 + element with negative prefix
Table 8-1
Table 11-1 Encoding of political values in the overview of the functions
of the Attorney General
Table 11-2 Resemanticization: the shift from the domain of the social
media to the domain of the law
Table 12-1 Linguistic Classification of Judgemental Tokens in the Corpus
Table 12-2 Frequency Ranking of the Judgemental Tokens per Linguistic
Class
Table 12-3 Linguistic Tokens of Social Esteem per Sub-systems and
Orientation
Table 12-4 Linguistic Tokens of Social Sanction per Sub-systems and
Orientation
Table 12-5 General Pattern of Judgemental Discourse in the Corpus
Reviews
 LIST OF FIGURES

Figure 2-1 Concept of Corporate Criminal Liability as balance between

interests
Figure 2-2 Combination of lenses for the study of legal concept as
specialised knowledge
Figure 3-1 Key concepts
Figure 3-2 The world of rules
Figure 3-3 The cycle of communication in legislative expression
Figure 9-1 Purpose of mediation
Figure 10-1 Adjuster Report: obligatory and optional moves
Figure 10-2 Concordance lines
Figure 10-3 Concordance lines
Figure 10-4 Concordance lines
 SERIES EDITOR’S PREFACE

I am pleased to inform the reader that volume 1 of the Legal Discourse

and Communication international series (2016) is now available. Legal
Discourse and Communication is a refereed international series initiated
by the Centre for Research in Language and Law (CRILL) of the English
Language Chair, Law Department of University of Naples 2
(http://www.crill.unina2.it/) and published by Cambridge Scholars in the
UK. It is a research tool series that explores theoretical, descriptive and
applied issues of legal discourse and communication manifest in different
languages, cultures, systems and societies.
This series ensures that only a select number of research papers
submitted go to print, and several academic members of the Advisory
Board from Asia, North America and Europe, each in their own area of
expertise, ensure the quality of published papers within the international
community of scholars involved in legal discourse and communication
studies.

Advisory Board

ASIA
Prof. Vijay K. Bhatia, HONG KONG

NORTH AMERICA
Prof. James Archibald, CANADA
Prof. Brian Bix, USA
Prof. Marianne Constable, USA
Prof. Andrei Marmor, USA
Prof. Steven L. Winter, USA

EUROPE
Prof. Robyn Carston, NORWAY
Prof. Jan Engberg, DENMARK
Prof. Paola Evangelisti, ITALY
Prof. Giuliana Garzone, ITALY
Prof. Sebastian McEvoy, FRANCE
Prof. Tarja Salmi-Tolonen, FINLAND
xii Series Editor’s Preface

Prof. Rita Salvi, ITALY

Prof. Christopher J. Williams, ITALY
Prof. Helen Xanthaki, UK
Prof. Giuseppe Balirano, ITALY
Dr. Ross Charnock, FRANCE
Dr. Eveline T. Feteris, THE NETHERLANDS
Dr. Colin Robertson, BRUSSELS

Like its sister E-book of selected articles (Language and Law in Social
Practice Research, Universitas Studiorum, Mantova, Italy, 2015) co-
edited by Girolamo Tessuto and Rita Salvi, this volume grew out of the
3rd International Conference Language and Law in Social Practice held at
the Royal Palace on 14-17 May 2014 and organised by the Centre for
Research in Language and Law (CRILL). This conference was attended by
highly-renowned international keynote speakers, Professors Vijay K.
Bhatia, Giuliana Garzone, Jan Engberg and Dr Tim Grant, who lectured on
different topics, along with a host of national and international scholars
and researchers from linguistic and legal backgrounds. As such, the
volume is a careful selection from 40 out of 90 total papers presented at
this conference by those scholars and researchers and reshaped into
articles after a double-blind peer review by members of the Advisory
Board for inclusion in this volume.
I would like to thank the members of the Conference Scientific
Committee and of the Editorial Board of this series, Vijay K. Bhatia,
Giuliana Garzone, Rita Salvi and Christopher Williams, for their
invaluable work in refereeing and offering suggestions on the conference
papers included in this volume. While my first thanks go to these members
and co-editors for their unwavering enthusiasm and close reading of
several drafts of the papers, I want to mention my debt to other fellow
colleagues from the Advisory Board of the series and outside for their
feedback on the ideas and approaches presented by some contributors in
their papers.

Legal Discourse and Communication

Series Editor
Girolamo Tessuto
 INTRODUCTION

GIROLAMO TESSUTO

Research landscape in legal discourse studies

Research work on legal language has evolved rapidly over the past
quarter of a century, attracting the attention of scholars from diverse
research traditions, whether legal experts, philosophers, linguists or other
academicians and practitioners. For linguists, in particular, concerns about
the use of language in the law and its representation of social action, social
actors and social practices have provided systematic insights into the
meaning and function of text, discourse or talk realized in academic,
professional and institutional sites of communication and generated
different data for analysis, method and theory.
In addition to earlier studies of legal language focusing on different
aspects of legal texts (Goodrich 1987; Kurzon 1994; Trosborg 1997,
Tiersma 1999, among others) and the structural and lexico-grammatical
features instantiated in specific written genres of legal discourse (Bhatia
1993), more recent studies of courtroom interaction have shown how the
analysis of a particular genre of spoken discourse discloses the distribution
of power between the lay and expert participants in the legal process
(Cotterill 2003; Harris 2011; Heffer 2005; Stygall 2012), or reveals the
centrality of narrative as a discourse activity in trial contexts (Harris 2001,
2005; Heffer 2002; Johnson 2008). While other significant research on
written legal genres has pointed out that legal language is inherently vague
and indeterminate (Bhatia, Engberg, Gotti, Heller 2005) and that legal
meaning is a sum of the parallel formulations existing in different
language versions (Engberg 2012), analysing language for its social
relevance to the law has also recently provided timely new insights on the
practices and attendant discourses of 'legal communities' alongside their
elaboration of identities, roles and cultures (Bhatia, Candlin, Gotti 2003;
Bhatia, Candlin, Engberg 2008; Bhatia, Candlin, Evangelisti 2008;
Tiersma 2010; Gotti and Williams 2010; Bhatia, Candlin, Gotti
2010/2012; Bhatia 2011; Bhatia, Garzone, Degano 2012; Tessuto 2012a;
Tiersma and Solan 2012; Williams and Tessuto 2013; Bhatia, Garzone,
xiv Introduction

Salvi, Tessuto, Williams 2014a/b; Bhatia and Gotti 2015). Central to these
stimulating works has been, for instance, the articulation of a set of issues
of inquiry which underpin major ADR processes at work, where
colonization of arbitration discourse and practices by litigation has
considerable relevance in the realm of today's international, inter-linguistic
and inter-cultural social actions motivated, in particular, by increasingly
globalized economies (Bhatia, Candlin, Gotti 2010/2012; Bhatia 2011;
Bhatia and Gotti 2015). Viewed simply as an action brought in court to
enforce a particular right, litigation has thus provided the important locus
for interdiscursivity and asymmetrical power relations in the professional
practice of law and accompanying systems, processes and procedures, and
the variety of textual, discourse and ethnographic analytical data have
pointed out how the discursive genre of multilingual arbitration awards "is
not immune from litigation contagion" (Bhatia, Garzone, Degano 2012:
12), or expanded on "the 'integrity' of arbitration principles" adopted in
international commercial arbitration practice (Bhatia and Gotti 2015: 9). In
addition to describing how the law itself and the actors within the legal
system conceive of relations between discourse, power and ideology
(Wagner and Cheng 2011; Bhatia, Hafner, Miller, Wagner 2012), further
insights have been brought to "the way language is used by the
professional legal community for the communication of its main business,
i.e. the negotiation of justice" (Williams and Tessuto 2013: 1), and to the
"diverse and complex features of legal discourse construction where
socially informed aspects of language use are inherently negotiated by
professional practices" (Bhatia, Garzone, Salvi, Tessuto, Williams 2014b:
7). Not only this, within our culturally and jurisdictionally diverse world,
and not least because of the increased internationalization of law, legal
translation issues have also been extensively addressed in theory and
practice (Garzone 2000, 2008; Chromá 2004; Gotti and Šarþeviü 2006;
Cao 2007; Tessuto 2012b; Cheng, Sin, Wagner 2014), where the system-
bound nature of legal language typifying a wide array of legal texts
(including legislation, regulations, and contracts in national and
international jurisdictions) and originating from the two most influential
legal families (Common Law and Continental Civil Law) accounts for
specific syntactic, semantic and pragmatic rules behind the process of
linguistic and cultural (un)translatability of legal texts. Clearly, the inter-
relatedness of legal language and culture and its implications for
translation still forms part of the cultural identities that are negotiated in
the translatability process. However, it also naturally poses a series of
challenges to legal discourse which mirrors ‘the organization of society
and its institutions and the roles and power structures inherent therein’
 Constructing Legal Discourses and Social Practices xv

(Wodak 1989: 155), and consequently brings up new forms of 'reconstruction'

of disciplinary discourse in legal translation processes and practices.
It therefore becomes clear that the formal list of legal language and
discourse-based studies in the review above, though by no means
exhaustive, is relevant to emphasise how the disciplines of applied
linguistics and law can work together to acknowledge interdisciplinary
research trajectories in terms of knowledge bases build up by the cross-
cutting methodological confines of language and law. Most importantly,
the list of studies is significant to account for the complexity of legal
discourse (written as well as spoken) in a variety of socio-cultural and
socio-interactional contexts, where linguistic constructs (such as those
deriving from generic patterns) are firmly rooted in the construction of
reality and its representations. While these contexts bear upon the
conditions of production within which legal discourse is framed and used
as well as the basis of social constructionist theories looking at social life
as socially (discursively) constructed as an effect of discourses, they also
however shape the values, discursive resources and structures of social
practices themselves (Fairclough 1992) through a range of situated
discursive practices (Fairclough 2001; Candlin 2002; Bhatia 2004). In
making this case for discursive practice and social practice of the law
relevant to “the defining work of a specific community” (Goodwin 1994:
630), a (genre-based) legislative discourse equates a legal discourse that is
forged with its argumentative social and institutional/professional
practices (people represent to themselves and each other what they do in
terms of activities enacted in the particular discourse), and is unified and
distinguished by its own background of legal culture. Culture, viewed
broadly as a set of traditions and standardized social practice in the
existing discourse, is not exempt from the reproduction of this
community's ideology and power in socially relevant norms, values, goals
and principles that define the everyday activities of the professional
community itself. By the same token, the use of this type of discourse is
contingent upon the role assigned to the law in society where it is
generated by moral, political and economic arguments, and therefore
filtered through the peculiarity of legal language use in this form of
communicative practice.
Under these conditions for uptake of research paradigms, however, it is
undeniable that analytical confines as well as procedures for a useful
investigation of legal discourse remain wide open from the increasingly
complex and dynamic sites of legal professional and institutional
communication, and may provide further opportunities for interpreting and
explaining the ways in which legal discourse as the product of institutional
xvi Introduction

structures and systems of the law functions within a social context and
practice through the agency of language in use. This, then, is the principal
leitmotif of this co-edited book, focusing on several different legal
discourse-creating practices - namely, legislating, court ruling, reporting,
translating, social networking sites and Web-generated news.

Content of this book

The present book Constructing Legal Discourses and Social Practices:
Issues and Perspectives brings together European scholars and researchers
primarily from a linguistic background to address the realized forms of
legal discourse, how these are framed and organized across the
participants, activities and purposes in distinctive sites of legal and para-
legal communication, and how these discursive forms are closely
controlled by social practices. To weave these objectives into a tight
thread, the thirteen chapters included in this volume are organised into
four Parts, addressing significant issues of legal discourse in a variety of
genres (spoken and written) from institutional, professional and
organizational contexts of disciplinary communication:

Part I - Multi-voiced/dialogic and conceptual analyses of legal

discourse
Part II - Identity, diversity, equality and justice in legal discourse
Part III - Judicial and out-of-court discourse
Part IV - Legal discourse in Internet-enabled communication

Descriptive analyses of such issues in data gathering and data

interpretation rely on specific perspectives, varied applications, and
different methodological procedures necessary to provide a multifaceted
overview of the ongoing research. The volume therefore offers a variety of
interests in undertaking analyses of legal discourses and genres alongside
their social as well as cultural practices constructed, negotiated and used
within the socially-informed framework of language and law.

Part I - Multi-voiced/dialogic and conceptual analyses of legal

discourse
Part One of the book opens with two keynote papers delivered at the
conference, looking at the diverse theories that have informed the authors'
research and analysis and providing theoretical and empirical perspectives
from which professional legal discourse practices can be viewed.
 Constructing Legal Discourses and Social Practices xvii

In the first keynote paper, Polyphony and dialogism in legal discourse:

focus on syntactic negation, Giuliana Garzone looks at the role of
syntactic negation in legal discourse as enacted particularly in appeal legal
judgments, and provides the theoretical background to the linguistic issue
under consideration by considering the notion of 'polemic' negation
inbreeding within legal reasoning theories. In this chapter, the author thus
draws the reader into an understanding of syntactic negation as an
inherently dialogic form that contributes to the polyphonic character of
discursive practices in the ongoing domain. Importantly, the emphasis on
polyphony in this chapter draws from the author's earlier research into the
discourse of arbitration awards, where polyphonic devices signalled by
concessive constructions and the use of language reports (Garzone/Degano
2012; Garzone 2012) are shown to be salient in the corpus-based analysis
of argumentative legal texts. Using a representative corpus of appeal
judgments from the UK Supreme Court and a methodological framework
for the study of polyphony and dialogism involving negation forms, the
author formulates the relevance of the research issue within a pertinent
body of published literature available on the subject, and refines it as she
proceeds with her research in a manner that entices the reader into
pursuing the full content of this spellbinding chapter. After introducing
and discussing the general notions of polyphony and dialogism and the
relevant theoretical frameworks, the author focuses on one polyphonic
device, i.e. syntactic negation, and its interpretation and categorisation in
the literature. She then looks at how dialogism is realised through syntactic
negation in appeal judgements, with special attention being paid to polemic
negation. Some variations on the syntactic patterns in which polemic
negation is set are also valuably considered, before drawing everything
together and tying it into her initial research within conclusions.
The vitality of this linguistic research and the way it enriches our
understanding of the issue in discourse and genre frameworks proceeds with
the second keynote paper Conceptualising corporate criminal liability: legal
linguistics and the combination of descriptive lenses by Jan Engberg. The
basic assumption underlying this captivating chapter is that a legal concept
may exist in different legal systems, be defined similarly, but be realized
as different versions. By combining different lenses in the description of
the different versions, the author argues, a fuller and thus more justified
picture of legal meaning can be obtained. The analytical framework for the
author's study is therefore offered by the concept of Corporate Criminal
Liability, i.e., the idea of using criminal punishment against corporate
crimes of different kinds. Due to the characteristic of the concept as a
balance between interests of corporations and of the public, the author
xviii Introduction

maintains, developing and rooting the idea requires compromises between

system characteristics and regulatory will, which generate partially
different legal concepts in different jurisdictions. Drawing from the
Knowledge Communication Approach, the author thus starts off with a
description of the chosen concept and the ways it is realised in German,
Danish and Spanish law. He then goes on to provide three descriptive
lenses that are applied in comparative law studies (culture, socio-
functional systems, interpersonal communication). While these studies
often seem to urge to choose only one of them, the author thus shows how
the lenses may be combined to produce a fuller picture of the actual
complexity of the concept and the factors influencing its development.
This is strikingly demonstrated through an empirical comparison of
aspects of the Danish and German (position in legal system) and the
Danish and Spanish (relative value of compliance programs) versions of
the concept, respectively.

Part II - Identity, diversity, equality and justice in legal

discourse
Part Two brings together four chapters addressing varied, yet overlapping,
issues within this topic area. In the first chapter, Freedom from Fear and
Want: Communicating Language Rights, Tarja Salmi-Tolonen sets her
analysis in the context of modern democracies and constitutional states
where basic rights, including access to justice and fair trial, are of utmost
importance. For these rights to have any real meaning, the author argues,
the language rights are essential to ensuring that a number of legal
principles, including the principles of fair trial, are fulfilled in a justice
system. With this in mind, the chapter examines how the fundamental
rights and questions of fair trial are communicated in transnational,
supranational and national legal instruments, and seeks to answer four
different questions: are regulative texts impersonal and decontextualized,
how are the principles of fair trial, equality of arms and language rights
expressed in regulative texts, and how do the law-makers use
metalinguistic means to communicate their purpose, and is there variation
between international, supranational and legislative discourse in this
respect? Using a metalinguistic framework for the analysis of different
materials, namely, covenants, directives and acts at international,
supranational and national levels, the author's findings support previous
results of variation when the texts are seen as being functionally
equivalent. Although legislative texts, as a genre, are generally considered
to be decontextualized and impersonal, the argument is therefore made for
 Constructing Legal Discourses and Social Practices xix

these texts to employ similar means of metadiscursive markers than other

genres.
In the second chapter, Legal necessity or competitive advantage: a
critical analysis of workplace diversity initiatives in Hong Kong, Aditi
Bhatia explores how workplace diversity initiatives are communicated in
corporations, particularly in the banking industry, and focuses on the
language used in informational documents intended to promote and
support diversity efforts from two major licensed banks in Hong Kong.
The author starts from the premise that Hong Kong is one of the world’s
largest and freest trading economies, so it should be relatively easy, at
least theoretically, to institute effective diversity initiatives in its economy
than other Asian economies, especially given the increasing support of its
legal system on the issue. Informed by the theoretical framework for
Critical Discourse Analysis where the focus is on the relationship between
text, interaction, and context, this chapter therefore investigates how the
banks in question specifically talk about ‘diversity’ in their attempts to
inform and educate their audiences. The author's analysis reveals that the
implementation of diversity initiatives often seems to be motivated by a
legal obligation or need for competitive advantage, and results in certain
linguistic pitfalls in communication about workplace diversity, including
de-personifying labels such as ‘talent management’ and ‘talent pool’ that
counteract the spirit of diversity and turn workforces into material assets.
In the third chapter, A Corpus-based Discourse Analysis of Refugee in EU
Legal Texts, Giuseppe Balirano and Maria Cristina Nisco represent the
more general topic (the 'big context') for their study by informing the
reader about the significant progress made in EU countries, where a
variety of legislative and non-legislative instruments have been made to
ensure fundamental rights and regulate migration flows. Despite these
significant inroads, the authors maintain, there seems to be an increasing
tension between general human rights and the specific interests of each
Member State at a time when the EU is striving to cooperate for the
creation of a common asylum system to promote solidarity, provide
protection and integration for asylum seekers, and implement and support
practical cooperation among all Member States. This scenery allows the
authors to narrow down to the specific topic in their case under analysis
and to examine the institutionalized language of the EU case-law
constructed and used mainly through judgments and opinions, dealing with
the intricate issue of EU refugees. Using the methodological framework
for corpus-based discourse analysis, this chapter thus looks at the most
salient linguistic patterns emerging from the discursive construction of
refugees within the chosen texts. While uncovering an unsafe process of
xx Introduction

social and political transformation with contradictory priorities, power

struggles and contrasting ideological influences, the authors argue for such
texts to also signal dangerous relations of inclusion and exclusion which
foster an authorial and hegemonic type of EU legal discourse.
The chapter Regulating the Law of Seeds: A comparative analysis of
social representations in legal versus ecological discourses by Marilyn
Pasqua closes this section. As an explanation for her study, the author sets
forth beforehand the recent adoption by the European Commission of a
proposal to regulate plant reproductive material law, which has led to a
European petition being promoted by consumer groups, small-scale
farmers and gene banks. The restrictions imposed by the regulation of
seeds control agro-biodiversity and violate farmer/breeder rights. Against
this provision, Vandana Shiva, a prominent leader of ecological justice,
has taken action to promote the ways in which seed laws should be
regulated. With this scenery under focus, this chapter considers how new
social representations in the regulation of seeds are pushed forward and
old ones transformed through discourse. It highlights the crucial role
played by social representations in legal vs. ecological discourse. Drawing
from the social representation theory and the critical discourse analysis
method, this study thus examines the interface between social and
discourse structures where the social representation of seeds is involved.
Findings indicate that contrasting representations strongly affect the social
practice of legislation, which is countered by the discourse of ecological
justice.

Part III - Judicial and out-of-court discourse

In this Part, the chapter Multiple negatives in legal language: the case
of English, Italian and Spanish by Stefano Ondelli and Gianluca
Pontrandolfo draws attention to the so-called “double” or “multiple
negatives” in legal texts drafted in Castilian Spanish, British English and
the varieties of Italian used in both Italian and Swiss Courts. This syntactic
feature, the authors argue, belongs to the set of traits traditionally criticised
by the advocates of plain language and are regarded as typical of the
language of the law and public administration. In order to investigate this
feature, corpora of court judgments are built in the current study, as well
control corpora containing newspaper articles. The preliminary results of
the study show that negatives are more frequently used in English and
Spanish general and legal texts, whereas Italian negatives are more
frequent in newspapers than in court judgments, even though the
frequency of “non” before nouns, adjectives, adverbs and negative
 Constructing Legal Discourses and Social Practices xxi

prefixes is found to be greater in the legal texts. Regardless of the

language, the author maintain, constructs involving more items classified
as negatives from a strictly morphological viewpoint never add up to a
significant share of the sub-corpora. The chapter also stresses that defining
“multiple negatives” is a challenging task due to the subsequent problems
in identifying semantically equivalent affirmative constructs.
In Argumentative strategies in the judgments of the European Court of
Justice: connectors in French and English, Silvia Cavalieri and Chiara
Preite examine the importance of language in the construction of
argumentation in judicial settings, an area that has been largely
underestimated in current literature. In an attempt to fill this gap, this
chapter thus provides new insights into the description of the linguistic
component of argumentation in legal discourse, and presents results of a
comparative analysis of argumentative connectives in the judgments of the
European Court of Justice delivered in French and translated into English.
As French is the procedural language, the authors' objective is to discuss
whether and to what extent translators make recourse to one-to-one
equivalence or, conversely, one-to-many equivalence, or to reduction.
Using two parallel corpora of judgements of the CJEU published in recent
years and an integrated framework for discourse and corpus analyses, the
authors test their claims against a possible influence of the French
language on the use of connectives in the English translations, and
compare the CJEU_En corpus to a reference corpus of judgments
delivered by the UK House of Lords. While a massive use of connectives
is shown in French judgements, a more frequent use of argumentative
connectives however is also observed in CJEU_EN corpus rather than in
the HoL corpus, providing evidence for the influence of the original
French version on the English translations of CJEU Judgements.
In Delivering justice: do mediators and lawyers speak the same
language?, Lesley Allport explores the use of language among mediators
and legal professionals, who both would describe themselves as being
concerned with ‘justice’ and ‘fairness’. However, the author raises the
question as to whether they mean the same thing. By considering the
growing use of mediation within civil justice, this chapter thus examines
the impact that the coalition of these two disciplines has had on language
and definition. As the boundaries between legal practitioners and
mediation professionals have become increasingly blurred, the author
argues, so the language of these two areas of practice has been borrowed,
exchanged and evolved. Drawing on empirical research conducted with
mediation practitioners, the author explores terms and definitions, points
to some immediate contradictions and raises three main questions: What
xxii Introduction

effect does the ‘win / win’ terminology of mediation have on establishing

the rights or wrongs of a point of law? How does the language of the
courts in promoting ‘settlement’ impact on the focus of mediation to build
understanding and improve communication? Can there be a shared
purpose when the legal framework effectively defines disputes in terms of
‘rights’, while mediation encourages the identification of ‘needs’?
Finally, Glen Michael Alessi examines US investigative accident
reports used to help insurance companies determine liability compensation.
Informed by a theoretical framework for corpus-assisted and critical genre
analyses in a large corpus of adjuster-written accident reports, the author
questions whether the language used in the chosen reports might reveal
features of paralegal communicative practice. Two potentially conflicting
functions seem to arise from the reports: first, by assembling facts and
impartially narrating the events of the accident, and secondly, by interpreting
and grading reliability of witness testimony. The author thus argues that
the interdiscursive and intertextual features acting with the reports provide
instances of professional and organizational discourse practices which are
also aimed at defending, accusing or convicting, and therefore reports
should be more accurately viewed as constituting investigative paralegal
discourse. However, the author adds, the communicative purposes
achieved in the reports appear straightforward to all parties as producing
an accurate and unbiased account of events in fulfilment of a business-to-
client relationship.

Part IV - Legal discourse in Internet-enabled communication

Part IV closes this volume with three contributions setting sights on the
different aspects of institutional activity and social life conducted in the
social media environment of Internet-based communication. In the
chapter, Reputation management and the fraudulent manipulation of
consumer review websites by William Bromwich, the focus of the study
is provided by businesses which are increasingly reliant on TripAdvisor,
Yelp and other consumer-review websites, in an awareness that user-
generated content can damage their reputation. In response to critical
reviews, and in defiance of the codes of conduct of these sites, the author
argues, some businesses resort to covert “reputation management”, hiring
freelance writers to disseminate fake reviews. In this sense, the author
adds, it is debatable whether these operations are protected by the First
Amendment, or whether they may the subject to criminal proceedings
under consumer protection and anti-fraud legislation. With these questions
in mind, this chapter focuses on the action taken by the New York State
 Constructing Legal Discourses and Social Practices xxiii

Attorney General Schneiderman against companies disseminating fake

reviews, including financial penalties and a requirement to sign an
Assurance of Discontinuance. A genre theory perspective is adopted to
examine the issues arising out of this case, identifying interdiscursivity in
the Schneiderman press release that is likely to be followed by similar
action by law enforcement authorities in other jurisdictions.
In Client reviews of lawyer performance in sociolegal networking
media: an appraisal analysis, Anna Franca Plastina sets the context of
her discussion within emerging socio-legal networking sites which allow
laypeople to engage in the new practice of reviewing their lawyers’
performance online. In the author's view, this practice can be seen as a
paradigm shift from a lawyer-centred to a client-centred approach, which
has been long advocated. In this sense, the act of judging lawyers places
increasing value on the lay experience as a constitutive part of the social
practice of law, and revolutionises traditional lawyer-client communication
with an inevitable impact on legal practice and client service. Reviews
automatically become an integral part of a lawyer’s online profile,
suggesting that clients regain power and contribute to shaping the
perception of justice and fairness within the global lay community. As this
practice is grounded in the key concept of judgement, this chapter thus
aims at investigating which kind of judgemental discourse shapes legal
client reviews, and whether this discursive practice is constrained by the
new socio-legal medium. For this purpose, the author draws from two
socio-legal networking sites and a combined methodological framework
derived from Appraisal Theory and appraisal and content analyses as
necessary to carry out the linguistic, judgemental and orientational levels
of the current discourse. Findings show how clients shape their
judgemental discourse more through social esteem than social sanction,
suggesting their desire for relationship-centred lawyering. Results are
further confirmed through content analysis, revealing how the
unprecedented power gained by clients outweighs medium constraints.
This chapter thus sheds light on the emerging role of clients as the primary
agents of the social practice of law.
In the final chapter of this section, How the law is responding to a
changing society: a comparative linguistic analysis of texts on cybercrime,
Judith Turnbull identifies the subject area of her interest within work,
business, and transactions now being increasingly transferred online, with
a consequent growth in the risk of and opportunities for cybercrime. In this
sense, cybercrime has become a real challenge for society. With this focus
in mind, this chapter investigates first how cybercrime is perceived by the
UK society at large, and provides a linguistic analysis of articles and
xxiv Introduction

editorials appearing in recently published newspapers and magazines. The

chapter then focuses on the legislation on cybercrime and, more precisely
on the EU Directive on attacks against information systems. This
Directive is chosen because it is the latest legislative act on the matter and
because it contains important Recitals where the directive’s purpose and
underlying philosophy are explained. Recitals thus contextualize the
chosen legislation and give interesting insights on how and why the UK
law is responding to the cybercrime challenge. By focusing on the recitals
and articles of the Directive, the author also reflects on the language and
style of this type of legal text.

Concluding remarks
All the contributing authors to this volume have brought together
scholarly efforts in an attempt to produce an eclectic taste in the ever-
evolving issues and perspectives that lie at the heart of the construction
and use of legal discourse as social practice. By covering a diverse and
complex range of areas for linguistic enquiry, this collection of insightful
and innovative contributions provides the wide scope for the critical study
of legal language as a tool for social action in establishing social identities,
social relations, shared values and ideologies, and influencing and
maintaining social processes and structures through the discursive
organization and the choice of realisations behind professional,
institutional and organizational activities and practices shaped by a
specific disciplinary community. While the analytical focus on specific,
yet dynamically complex sites of discursive and social practices in the
range of the contributors' motivations also acknowledges theoretically
scrutinized areas of dialogism, hybridity and interdiscursivity within
communicative practices and constraints, it sets up a descriptive and
interpretive framework for engaging with representations of text, (critical)
discourse, genre, corpus-based and other analyses and approaches
necessary for a proper account of those activities and practices across
distinctive sites of legal communication.
This volume is therefore multidimensional and multiperspectival in its
design and implementation of key applied linguistic activity, and takes the
readers a step further in making them aware of the most recent concerns
confronting language, discourse and communication in the law. We are
sure that whatever the readers' interests and motivations, they will find
some of these contributions in this book valuable and thought-provoking,
as we have in putting it together. We believe this book will prove to be an
 Constructing Legal Discourses and Social Practices xxv

attractive and refreshing experience for old and new researchers, including
students who seek to pursue research work in applied linguistics.

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 PART I:

MULTI-VOICED/DIALOGIC
AND CONCEPTUAL ANALYSES
OF LEGAL DISCOURSE
 CHAPTER ONE

POLYPHONY AND DIALOGISM

IN LEGAL DISCOURSE:
FOCUS ON SYNTACTIC NEGATION

GIULIANA GARZONE

Introduction
This chapter looks at the role of syntactic negation in legal discourse,
and specifically in judgments, considering in particular the use which has
been defined “polemic”, especially recurrent in legal reasoning. Syntactic
negation will be examined as an inherently dialogic form contributing to
the polyphonic character of discursive practices in this domain.
In previous research, focusing on arbitration awards, I have shown that
recourse to polyphonic devices is especially salient in argumentative legal
texts, studying the use of language reports and of concessive constructions
(Garzone / Degano 2012; Garzone 2012), whose rhetorical prominence in
constructing legal argumentation was proved thanks to a detailed
examination based on corpus analysis and close reading.
This study is based on the analysis of appeal judgments, and in
particular of decisions of the Supreme Court of the United Kingdom.
The methodological framework is set in the tradition of research on
polyphony and dialogism (for an overview, cf. Dandale 2006), with
special regard for studies on negation. It also makes reliance on corpus
interrogation, using the Wordsmith Tools 6.0 suite of programmes (Scott
2015).
The chapter is organised as follows. After introducing and discussing
the general notions of polyphony and dialogism and the relevant
theoretical frameworks, I shall concentrate on one polyphonic device, i.e.
syntactic negation, and its interpretation and categorisation in the
literature. I shall then look at how dialogism is realised through syntactic
negation in appeal judgements, with special attention to polemic negation.
 Polyphony and Dialogism in Legal Discourse 3

Some variations on the syntactic patterns in which it is set will also be

considered, before going on to conclusions.

Polyphony and dialogism

The starting point in this chapter is the idea that discourse is never
totally monologic: any utterance has no meaning in itself, but responds to
previous utterances and anticipates future responses, being only “a link in
the chain of verbal exchange” (“un maillon dans la chaîne de l’échange
verbale” (Bakhtin 1952/1979/1984: 302-303), and at the same time
postulates the presence of different ‘voices’ in all ‘speech utterances’ (in
Bakhtin’s terminology).
The distinction between polyphony and dialogism, the two words used
in the relevant literature to refer to these phenomena, is rather elusive
(Amossy 2005). Both terms can be traced to Bakhtin and were subsequently
appropriated by various theoretical frameworks.
“Polyphony”, originally used by Bakhtin (1929/1984) to describe the
interaction of voices in certain novels, has found considerable favour
among linguistics- and pragmatics-oriented scholars. Preference to it is
given by Ducrot in his polyphonic theory of enunciation (1984: 171-233)
and by many scholars in the French Discourse Analysis tradition (e.g.
Maingueneau 1994; Anscombre 1990, 2013), and the ScaPoLine Group
(Nølke 2001; Nølke, Fløttum and Norén 2004). Scholars of the
praxematics group (Bres 1998, 1999; Bres and Nowakowska 2005;
Nowakowska 2005), instead, give preference to the twin notion of
dialogism, which Bakhtin had introduced in “Discourse in the Novel”
(1981)1 and actually used more consistently in his own works although
never with a specific or operational meaning2 (cf. Nowakowska 2005: 21-
23).
If one compares Ducrot’s definition of polyphony, as the quality of a
text in which “the utterance signals, in its enunciation, the superimposition
of several voices” (“l’enoncé signale, dans son enunciation, la
superimposition de plusieurs voix”;3 Ducrot 1984: 183), with that of Bres
and Nowakowska (2005: 83) as

1
The essay was actually written in 1934-1935. Cf. Bakhtin 1981: 421.
2
To this effect, Anscombre clarifies this point: “Rappelons que Bakhtine n’utilise
le mot de polyphonie qu’une fois dans ses écrits sur le sujet, et que ce qu’on
appelle polyphonie en linguistique correspond plutôt à ce que Bakhtine appelait
dialogisme, bien que, là encore, ce qu’en dit Bakhtine est très éloigné d’une
quelconque théorie linguistique.” (Anscombre 2013: 11n.2, italics in the original).
3
If not otherwise indicated, all translations from French are mine.
4 Chapter One

the capacity of an utterance to convey, in addition to the voice of the

enunciator, one or several other voice(s) which give rise to an enunciative
stratification (la capacité de l’énoncé a faire entendre, outre la voix de
l’énonciateur, une ou plusieur(s) autre(s) voix qui le feuillettent
énonciativement)

it is quite evident that in broad terms the two notions are used
interchangeably.
This is also pointed out by Dêtrie, Siblot and Vérine in their glossary
of praxematic terminology: “The concept of polyphony has been extended
by Ducrot to where Bakhtin spoke of dialogism” (“Le concept de
polyphonie a été étendu par Ducrot là ou Bakhtine parlait de dialogisme”:
Dêtrie, Siblot, Vérine 2001: 82; cf. also n. 2 above). According to
Nowakowska (2005: 21-23), in this respect a role has also been played by
the way these two words were translated into English, hardly
distinguishing one from the other.
However, it can be noted that the word “dialogism” tends to lay more
emphasis on interaction rather than on superposition or juxtaposition of
voices in texts (cf. Dendale 2006: 22), and involves the idea that there is a
hierarchy between the embedding utterance (“énoncé enchâssé”) and the
embedded utterance (“énoncé enchâssant”) (cf. Bres/Nowakowska 2005).
In light of these considerations, in this work the words “polyphony”
and “dialogism” are used as nearly equivalent in meaning, but dialogism is
intended to designate specifically linguistic phenomena, while with
“polyphony” reference is made to the effects that dialogism has on the
quality of texts and discourse.
On the level of phrastic syntax, dialogism is realised as an “internal
dialogue” (Bakhtin 1981: 279ff), i.e. a ‘virtual’ dialogue integrally enacted
by the locutor him/herself and mostly implied rather than stated:

Within the limits of an utterance, the locutor … asks questions, replies to

them himself, opposes objections that he himself refutes (Dans les limites
d’un énoncé, le locuteur … pose des questions, y répond lui-même, oppose
des objections que lui- même refute, etc. Ces phénomènes ne sont que la
simulations conventionelle de l’echange verbal) (Bakhtin 1952/1979/1984:
278).

Thus the dialogue does not take the form of subsequent turns, but rather of
an inherent enunciative duality within the same syntactic unit (cf. Authier-
Revuz 1995; Bres/Nowakowska 2005: 140).
An important distinction is that between interdiscursive and
interlocutive dialogism introduced by Bres (2001: 84): ‘interdiscursive
dialogism’ (‘dialogisme interdicursif’) refers to the relation between an
 Polyphony and Dialogism in Legal Discourse 5

utterance and previous utterances on the same topic. It is similar to the

notion of “manifest intertextuality” put forth by Fairclough (1992: 117),
who does not use the concept of polyphony, but prefers to include these
dialogic phenomena within the general category of intertextuality. In
“interlocutive dialogism’ (‘dialogisme interlocutif’) the locutor anticipates
the reaction/response an addressee may have to the utterance
(Bres/Nowakowsa 2005: 139). According to Bakhtin, these two forms of
dialogisation

can, nevertheless, be very tightly interwoven with each other, becoming

almost indistinguishable during stylistic analysis (peuvent nèanmoins
s’entrelacer très étroitment, devenant difficiles à distinguer l’une de
l’autre) (Bakhtin1934/1978: 105)

but they are useful for purposes of categorisation.

An important focus in research on polyphony and dialogism has been
the description and categorisation of the various “voices”, or (sources of)
points of view, i.e. the enunciative sources or instances (or ‘enunciative
entities’: cf. Nølke 2006) that can be identified in discourse, resulting in a
complex and diversified classification of ‘sujets parlants’, which will not
be examined here as it goes beyond the scope of this work. For the
purposes of this study reliance will be made on Dendale’s (2006)
simplified generalisation, and polyphony will be seen as arising from “the
co-presence of at least two discursive entities, two entities that do not
share the same point of view and/or that do not represent the same person”
(Dendale 2006: 9, my italics), the “locutor” who is responsible for the
utterance, and the enunciator/s, i.e. the instance/s to whom the points of
view expressed in the sentence are attributed, the locutor him/herself also
playing the role of an enunciator.
All forms of dialogism, whether more or less explicitly encoded, are
associated with lexicogrammatical clues that signal the presence of two or
more enunciative instances. The most comprehensive categorisation, put
forth by Bres and Novakowska (Bres 1999; Bres/Nowakowska 2005;
Nowakowska 2005), includes irony, negation (including ‘renchérissment’:
“not only …but also”; rectification: “… not … but…”), confirmation,
concession and opposition, presupposition, interrogation, ie. rhetorical
questions, comparison, cleft sentences, extraposition (i.e. right- or left-
dislocation), use and alteration of proverbs, echo-utterances, autonymical
modalisation and reported speech and, in French, the conditionnel with
hearsay value. Some of these same discursive traits – speech reportage (or
‘language representations’), presupposition, negation, irony – figure on
Fairclough’s (1992: 117-118) list of indicators of “manifest intertextuality”.
6 Chapter One

Syntactic negation
This chapter examines in particular utterances characterised by the
presence of one of such discursive indicators, i.e. negation.
In the last few decades, syntactic negation has received substantial
scholarly attention, above all in the pragmatic perspective, with book-
length studies (cf. e.g. Horn 1989/2001; cf. also Horn 1985) and shorter
essays, often giving rise to interesting scholarly debates, like that on the
pragmatic or semantic nature of metalinguistic negation (Carston 1996,
1999; Burton-Roberts 1999), or the debate on the classification of
negatives as “rejections” and “denials”, originally proposed by Tottie
(1982, 1987) as based on the presence or absence of volition, and modified
by Pagano (1994) arguing in favour of the criterion of the prevalence of
the ideational or interpersonal function. In this study reliance will be made
mainly on studies focusing on the dialogic properties of negation, not only
in the French tradition (Ducrot 1984; Berrendonner 1976/1981; Danon-
Boileau 1987; Bres 1999; Bres/Nowakowska 2006), but also in the
English-speaking one (Fairclough 1992; Martin and White 2005).
Syntactic negation is one of the most typical and frequently used forms
of dialogism; indeed, according to Charaudeau/Maingueneau (2002: 445)
it is the example of linguistic polyphony par excellence. This is because –
as Ducrot (1984: 215) points out – in most negative sentences there is a
“clash between two antagonistic attitudes attributed to two different
enunciators” (one obviously coinciding with the locutor), in other words
the clash between two voices, the author’s negative voice and another
voice responsible for the statement being negated, a property which has
been recognised also by authors belonging to different traditions and
schools of thought (e.g. Tottie 1982; Pagano 1994; Fairclough 1992). This
enunciative complexity emerges clearly from Martin and White’s (2005)
description of negation as a dialogistic device:

negation is a resource for introducing the alternative positive position into

the dialogue, and hence acknowledging it, so as to reject it. Thus in these
dialogistic terms, the negative is not the simple logical opposite of the
positive, since the negative necessarily carries with it the positive, while
the positive does not reciprocally carry the negative, or at least not
typically. (Martin / White 2005: 118)

In his discussion of the Maxim of Manner, Leech (1983: 101) points

out that the choice to use a negative is a marked option, given that people
try to avoid using negative propositions as they are much less informative.
Therefore:
 Polyphony and Dialogism in Legal Discourse 7

When negative sentences ARE used, it will be for a special purpose. In fact
the CP [Cooperative [Principle] will predict that negative sentences tend to
be used precisely in situations when they are not less informative for a
given purpose than positive ones: and this will be when s wants to deny
some proposition which has been put forward or entertained by someone in
the context (probably the addressee). Negative uninformativeness therefore
provides an explanation of why negative propositions are, in pragmatic
terms, denials of positive propositions which are in some sense ‘present in
the context’. (Leech 1983: 101)

This suggests that the intense recourse to syntactic negation in

judgments is especially meaningful, as it does not represent the most
effective option and results from a deliberate choice: preferring it involves
paying a price in terms of informativeness.

Polemic and descriptive negation

For the sake of the analysis that will follow, it is essential to consider
Ducrot’s (1984: 216-217) distinction between polemic and descriptive
negation (“negation polemique et negation descriptive”: already
formulated in Ducrot 1972; cf. Moeschler 1982, Ch.1), broadly present
with a different terminology also in other authors’ works (cf. “négation
polémique”: Berrendonner 1976/1981: 54-58; “négation modale” or
“appréciative”: Danon-Boileau 1987: 37-38). A negation is descriptive
when it is used to predicate a state of things, and its author does not
present it as opposing a contrary opinion /assertion. On the other hand,
polemic negation aims to contrast a contrary/adverse opinion, which is
incorporated in the clause. In Ducrot’s definition:

Nous distinguons deux sortes de négations. Une négation ‘polémique’, qui

correspond à un acte de parole de négation, et qui se présente donc comme
réfutation de l‘énoncé positif correspondant [...] Et d’autre part une
négation ‘descriptive’, qui est l’affirmation d’un contenu négatif, sans
référence à une affirmation antithétique. (Ducrot 1974: 123-124)

In other words, every negative statement may have two possible

contents, either descriptive or polemic. Descriptive negation can be seen as
a mere account of a state of things, i.e. as an act of asserting a certain
propositional content which happens to be negative. On the contrary,
polemic negation, often used refutatively, puts forth the illocutionary act
of denying the proposition contained in the utterance (cf. also
Berrendonner 1976/1981: 53-57). Ducrot (1974) also adds a third category
of negation, which he calls “metalinguistic”; it refers to “a negation that
8 Chapter One

contradicts the terms of an actual utterance and opposes it” (“une négation
qui contredit les termes mêmes d’une parole effective à laquelle elle
s’oppose”: Ducrot 1984: 217), i.e. to the wording of the utterance rather
than to its propositional content.
In his later works Ducrot himself attenuates the distinction between
polemic and descriptive negation, considering polemic negation as the
main, original type of negation and downgrades descriptive negation to “a
delocutionary derivative of polemic negation” (“un dérivé délocutif de la
négation polemique”: Ducrot 1984: 218), thus introducing the hypothesis
of the primacy of polemic negation. This view is shared to different
degrees by various other authors like Anscombre (1990) and Nølke
(1993a: 222, 1993b: 241-242), who argue that in itself negation is always
polemic and entails a certain degree of denial of an opposite proposition
(Anscrombe 1990: 59), i.e. a different underlying point of view or
enunciation. Subscribing to this view leads to the idea that all negatives
are polyphonic, an idea that has also many detractors, e.g. Larrivée, who
categorically dismisses it and asserts that “dialogism is not constitutive of
negation” (“le dialogisme n’est pas constitutive de la negation”: Larrivée
2005: 319). Other authors see the distinction between polemic and
descriptive as scalar rather than discrete, e.g. Fløttum (2005), who
contends that this distinction is not really clear-cut, but rather continuous,
with differing degrees of polemicity from maximum to zero.
In this study, this complex debate will be put into the background and
the traditional distinction between descriptive and polemic negation will
be relied on, focusing in particular on those forms that qualify as overtly
polemic. Only occasionally will instances of descriptive negation be
considered in order to clarify the differences from polemic negation.
Although negative meaning is realised by means of a number of
different devices and by virtually all parts of speech, in this analysis
attention will be restricted to cases of explicit syntactic negation, and
specifically to all cases where the negative particle “not” appears, or other
forms of explicit syntactic negation such as the determiner “no”.

The study
Study design
This study of syntactic negation is based on the analysis of a corpus
comprising 49 judgments issued by the Supreme Court of the United
Kingdom from 1 October 2009, when it became operational, until the end
of 2013. This Court was established by Part 3 of the Constitutional Reform
 Polyphony and Dialogism in Legal Discourse 9

Act 2005 (http://www.legislation.gov.uk/ukpga/2005/4/part/3)4 and as the

highest appellate court in the UK supplanted the House of Lords where
judicial functions were exercised by the Lords of Appeal in Ordinary
(commonly called "Law Lords").
These are the details of the corpus:

Files 49.00
Tokens 809,087.00
Types 14,977.00
STTR 34.76

Table 1-1 UK Supreme Court judgments: corpus details

In order to put the results of the quantitative analysis into perspective,

the data were compared with those obtained from an academic corpus, the
CADIS corpus (Gotti 2010), courtesy of Prof. Maurizio Gotti, University
of Bergamo, which, for the purposes of this analysis, was divided into two
sub-corpora, a non-legal corpus consisting of academic research papers in
Economics, Applied Linguistics and Medicine (NL CADIS) and another
comprising only research papers in legal studies (L CADIS), considering
that the authors of legal research papers are usually professionals of the
law, so they might maintain some of the traits of judicial writing also in
their academic publications.

NL CADIS L CADIS
Sub-corpus Sub-corpus
Tokens 555,197 436,035
Types 26,035 13,748
STTR 36,92 32,57

Table 1-2 Details of control corpus: NL CADIS Sub-corpus and L CADIS

Sub-corpus

The UK Supreme Court corpus as well as the two control corpora were
searched for the two main negation markers, the negative operator “not”,
and the central determiner “no” (Quirk et al. 1985: 254-256). Also the two
collocations “not …but” and “not only … but” were searched for, as they
will also be considered in this study (cf. Rectification and Renchérissement
below). The search yields the following results:

4
Unless otherwise indicated, all websites were last visited on 10 May 2015.
10 Chapter One

Negation UK Supreme NL CADIS L CADIS

Court Sub-Corpus
Not 6,454 0.80 1,991 0.36 1,662 0.48
no 2,328 0.29 843 0.15 520 0.15
“not … but” 164 0.02 50 0.01 76 0.02
not only … but 124 0.02 74 0.01 51 0.01

Table 1-3 Results of corpora analysis

Data show that the frequency of the main negation markers not and no
is more than double in the case of judgments compared to the non legal
academic corpus, and over 30% higher compared to the legal academic
corpus.
This confirms the hypothesis that, like other polyphonic devices,
negation is typically more frequent in legal argumentative texts than in
other domain-specific texts, including research papers in legal studies. As
regards the two phrases featuring “not”, the difference in frequency is
much less marked, but it is still there, except for the “not … but” pattern,
which has the same frequency in the UK judgment corpus as in the Law
CADIS corpus.
In the next sections, from the quantitative aspect attention will shift to
ways in which negation is used for argumentative purposes in appellate
judgments. Examples are taken from various judgements according to a
criterion of representativeness, but the most complex instances, requiring
contextual knowledge to be understood, are drawn from one particularly
interesting judgement, Smith and others v Ministry of Defence
(UKSC_2013_0028), which will be introduced in more detail.

Descriptive negation
Before going on to look at the dialogic, and therefore polemic, use of
syntactic negation, which is the main focus of this study, some instances of
descriptive negation will be illustrated. In the corpus many good
candidates to be classified as descriptive negation occur in the narrative
part of judgments where the facts that led the controversial issue under
discussion and the judicial history of the case are set out.
See the following example:

(1) In 2006 she [the Secretary of State] commissioned Professor Hester and
a team at Bristol University to prepare a report on the merits of any such
change.
 Polyphony and Dialogism in Legal Discourse 11

The Secretary of State did not publish Professor Hester’s report; and it was
later published independently. (UK_2011_0022, §22-23, R (on the
application of Quila and another) (FC)(Respondents) v Secretary of State
for the Home Department)5

What we have here is a report on facts. The Secretary of State had

commissioned a report on the viability of a proposal to raise the minimum
age for a marriage visa from 21 to 24, but the report was published only
later and independently.
In many cases, whether a negation is polemic or not depends on
essentially contextual pragmatic factors, being determined by the
‘illocutionary complex’ within which a statement is set (cf. Berrendonner
1976/1981: 52-53). In the following example, in an appeal for the killing
of three soldiers by friendly fire while serving in the British Army in Iraq,
the first Lord Justice to take the floor is giving an account of the incident:

(2) Lt Pinkstone did not know of the presence at the dam of the Royal
Regiment of Fusiliers battle group. He did not realise that he was firing
back across the canal, as he was disorientated and believed that he was
firing in a different direction. (UK_2013_0028, §3, Smith and others v
Ministry of Defence)

In this narrative section Lord Justice Hope is describing the state of

knowledge of Lt Pinkstone, the man who fired against his colleagues’
tank, stating that he was unaware of their presence. In this case the two
negative clauses are descriptive, being set in a narrative sequence and
stating ascertained facts, but they could be interpreted as polemic if the
point at issue were whether Lt Pinkstone was aware of the presence of
British troops in the location where he had identified some hot spots and
thought they might be enemy personnel moving in and out of a bunker, so
he decided to fire. But here Lt Pinkstone’s good faith is not being
questioned and is simply described as a given fact, with no polemic intent.
In some cases, the descriptive character of a negative statement is due
to its syntactic embeddedness, mostly as a defining relative clause, as in
the following instance:

5
Judgments are referred to by means of the denomination given to them when
setting up the corpus and by means of their official title. For the sake of brevity,
when a judgment involves more than one case, only the first case is specified. The
complete reference can be found in Appendix I.
12 Chapter One

(3) There are occasions when women may be able to compare themselves
with men who are not employed by the same employer. (UK_2011_0046
§2, North and others v Dumfries and Galloway Council (Scotland))

This negative statement functions as a modifier within the nominal

constituent in which it is integrated (cf. Huddleston/Pullum 2002: 1034),
providing a restrictive definition6 of the men with whom women may
compare themselves, so it is obviously descriptive, simply setting forth a
negative propositional content. Other instances of descriptive negation will
be identified and commented upon in the course of the discussion as they
appear in the examples discussed.

Polemic negation
We shall now proceed to the analysis of some dialogic, i.e. polemic,
instances of syntactic negation.
The first example to be discussed has been extracted from the Smith
and others v Ministry of Defence case introduced above (cf. Example 2),
which embraces three episodes of soldiers killed in action in Iraq for
which the Ministry of Defence is accused of being responsible: in addition
to the case mentioned above, another two incidents where British soldiers
were killed by the explosion of Improvised Explosive Devices while
travelling in Snatch Land Rovers, a kind of lightly armoured vehicle
unprotected against ballistic threats.
In reporting on the case, Lord Hope discusses if at the time of their
deaths the two soldiers killed in one of the two Snatch Range Rover
incidents were or not within the jurisdiction of the United Kingdom for the
purposes of article 1 of the European Convention on Human Rights,
because if they were this would have entailed a duty of care falling on the
Ministry of Defence:

(4) The question whether at the time of their deaths Pte Hewett and Pte
Ellis were within the jurisdiction of the United Kingdom for the purposes
of article 1 of the Convention does not receive a direct answer from the
Grand Chamber in its Al-Skeini judgment. This is not surprising, as that
was not the question it had to decide. (UK-2013_0028, §42, Smith and
others v Ministry of Defence)

6
Quirk et al. (1985: 1247-1250) prefer to call this kind of defining relative clause
“restrictive, while Huddleston/Pullum (2002: 1034-1035) give preference to
“integrated”.
 Polyphony and Dialogism in Legal Discourse 13

While the negative utterance “does not receive a direct answer” refers
to a fact, and can be considered as merely descriptive, the judge’s
consideration that this is not surprising is certainly dialogic (or polemic).
Following Bres (1999), the latter can be analysed as an enunciation made
by the main enunciator E1 (in this case coinciding with the locutor. i.e. the
judge) incorporating a positive enunciation (this is surprising) attributed to
a second enunciator e1, whose positive enunciation is denied. Here e1’s
possible objection that “it is surprising that the Grand Chamber in its Al-
Skeini judgment has not provided a direct answer to the question”, which
may weaken the judge’s argument, is anticipated and dismissed. This is a
clear example of interlocutive dialogism, as the negation regards an
expected objection.
In the following example, the Judge evokes the claim made by the
plaintiffs that provisions of Article 2 of the European Convention on
Human Rights would be compatible with military life so soldiers would be
entitled to the same standard of protection as civilians, and rejects it:

(5) These comments, however brief, do seem to make it clear that it would
not be compatible with the characteristics of military life to expect the
same standard of protection as would be afforded by article 2(1) to
civilians who had not undertaken the obligations and risks associated with
life in the military. (UK-2013_0028, §71; Smith and others v Ministry of
Defence)

It can be noted that this sentence contains also a second negative

enunciation (“who had not undertaken the obligations and risks associated
with life in the military”), positioned in an embedded defining clause and
therefore simply descriptive.
Negative statements are typically used when “distinguishing” a case or
denying the applicability of a precedent to the case at hand, a discursive
process that is recurrent in legal reasoning, and in particular in common
law systems. It is typically of an interdiscursive kind as it refers to pre-
existing texts.
See the following example:

(6) I would proceed on the basis that we are not bound by “Bolton” […]
(UKSC_2011_0025, §48, TRIGGER - BAI (Run Off) Limited (In Scheme of
Arrangement) v Durham)

This statement comes at the end of a long reasoning and rejects the
underlying statement “we are bound by Bolton MBC v Municipal Mutual
Insurance Ltd [2006]”; the author sets on stage the point of view of Lord
14 Chapter One

Justice Rix, who in a previous appeal on the same case had felt bound by
that precedent, and this point of view is rejected.
In other situations, the dismissal of a possible precedent does not refer
to an actual proposal to apply it, as in the previous example, but
anticipates possible objections to the failure to apply it although it may
seem to have analogies with the case being considered:

(7) This is not, after all, a case of pure reportage […] a case like Al-Fagih v
H H Saudi Research and Marketing (UK) Ltd [2002] EMLR 215
(UKSC_2010_0166, §115, Flood v Times Newspapers Limited)

In other contexts, what is rejected is not the applicability of case law,

but that of statutory provisions:

(8) The relevant statutory provisions in relation to (actual) manufactured

interest were principally section 736A of, and paragraph 3 of Schedule
23A to, ICTA 1988. They are not directly relevant to this appeal.
(UKSC_2009_0023, §17, Commissioners for Her Majesty's Revenue and
Customs v DCC Holdings (UK) Limited)

Sometimes the analogy being rejected is between cases examined in

two limbs of the same appeal. This example regards the two episodes
involving the Snatch Land Rovers in the Smith and Others v Ministry of
Defence case; the locutor refutes the idea, attributed to a second
enunciator, that there are analogies between the two incidents and the
relevant allegations:

(9) The circumstances of the Snatch Land Rover cases are not precisely
analogous to those of any previous case in which the implied positive
obligation under article 2 has been imposed, and the allegations made in
each of the claimants’ particulars of claim (see paras 11 and 12, above) are
not identical (UK-2013_0028, §77; Smith and Others v Ministry of
Defence)

Recourse to polemic negation is frequent in the metalinguistic

apparatus of judgments. See the following examples:

(10) We are not concerned in this case with the circumstance in which the
creditor is also the supplier. (UKSC_2012_0135, §17, Durkin v DSG Retail
Limited and another (Scotland))

(11) It is not disputed that the subsection applies to the situation in this
case: […] (UKSC_2009_0228, §35, Royal Bank of Scotland plc v John
Patrick McCormack Wilson and another).
 Polyphony and Dialogism in Legal Discourse 15

(12) It is not clear in what sense the Court of Appeal was using the phrase
“presumption of detention” in this passage (UKSC_2010_0063, §52,
Walumba Lumba (previously referred to as WL) (Congo) 1 and 2 v
Secretary of State for the Home Department).

(13) There is no doubt that these deaths fall within the jurisdiction of the
Strasbourg court, as the events that have happened since the appellants
lodged their application with that court have shown. (UKSC_2010_0101,
§79, Application by Brigid McCaughey and another for Judicial Review).

In example (10) the judge sets on stage and rejects the point of view of
those who might think that the case being considered here is one where the
creditor coincides with the supplier, which would warrant the application
of sections 11(1)(a) and 12(a) of the Consumer Credit Act 1974, while in
Example (11) the point of view of anyone disputing the applicability of a
subsection is introduced and refuted. In (12) and (13), instead, the negation
regards the locutor’s degree of knowledge or certainty about the
proposition put forth in the that- clause that follows, arguing against an
opponent who might think that the sense of the phrase under discussion is
clear (12), or who raises doubts as to the Strasbourg court’s jurisdiction on
the case (13).
While in the instances examined so far, preference is given to
impersonal formulations (impersonal we, anticipatory it, existential there,
inanimate subjects), in many contexts the subject of the metadiscursive
verb is expressed by means of a first person singular pronoun referring to
the Justice issuing the judgment. This is part of an overall discursive
approach characterised by a high number of self-mentions, with 2,621
occurrences of the pronoun “I”, equivalent to a frequency of 0.33%,
compared to 618 occurrences (0.11%) in the NL CADIS Sub-corpus and
151 hits (0.03%) in the L CADIS Sub-corpus.
The collocation of “I” with “not” + a verb of opinion (think, see,
consider, dissent, find, say, agree, etc.) recurs 280 times (10.68% of the
total number of occurrences of this pronoun), in NL CADIS 19 times
(3.7% of the total) and in L CADIS only 9 (0.05 of the total).
Here are some examples:

(14) As has already been noted, that section has been amended more than
once. But I do not think that it is helpful to look back into the legislative
history. (UKSC_2010_0131, §15, Scottish Widows plc v Commissioners
for Her Majesty's Revenue and Customs (Scotland))
16 Chapter One

(15) I do not subscribe to the view taken by Lord Wilson (para 178) that
this was the answer to “a narrow, ostensibly a pedantic, question of the sort
against which the court in Strasbourg often sets its face”.
(UKSC_2012_0122, §63, Kennedy v. the Charity Commission)

In example (14) the point of view that is put on stage and denied is
that, since the statute in question has undergone various amendments, it
would be useful to consider its legislative history. And in (15) the judge
contradicts anyone who may think that he shares Lord Wilson’s very
critical view of the kind of questions on the right to receiving information
the Strasbourg court has to examine.
Self-mentions can also occur by means of first person singular
possessive adjectives, as in the following example:

(16) My conclusions do not mean that every death or injury occurring in

the course of military conflict falls necessarily outside the scope of any
duty of care. (UKSC_2013_0028, §135, Smith and others v Ministry of
Defence)

Here the “point of view” that the judge foresees and refutes is a
possible criticism that his conclusions relieve the Minister of Defence
from all responsibility for soldiers’ deaths occurring in military conflicts
under any circumstances; on the contrary, in the following paragraph he
admits there may be cases where there is negligence on the part of the
Ministry of Defence, although he thinks this does not apply to the case at
hand.
In the following section, recourse to negation in more complex
syntactic patterns will be examined.

Negation in correlative coordination

Syntactic negation with a polemic value also occurs in more complex
textual structures which are worth looking at.

Rectification
The first of such structures to be examined here is the “not …but”
correlative pattern, which Bres (1999) calls “rectification” (cf. Bres 2005).
While in a standard instance of negation a positive utterance attributed
to a non-specified opponent is negated, and beyond that nothing is said
specifically about the author’s view and the reader is left to infer it from
 Polyphony and Dialogism in Legal Discourse 17

the context, in rectification, by contrast, the locutor’s view is also

specified, often introduced by but, as in the following example:

(17) For that reason I agree with Lord Mance that the scope of combat
immunity should now be discussed not as a separate principle, but as part
of the third element of the Caparo analysis. (UKSC_2013_0028, §164,
Smith and others v Ministry of Defence)

This is a statement by Lord Justice Carnwath, the third judge to take

the floor in the Smith and others v Ministry of Defence case. He expresses
his agreement with Lord Mance in a statement containing two parallel
rhematic constituents, or “conjoins” (Quirk et al. 1985: 46), incorporating
two different enunciations: the first one, presented as someone else’s
opinion and “repudiated” (Quirk et al. 1985: 935), is that combat
immunity should be discussed as a separate principle, the second, endorsed
by the judge, asserts that, instead, the case should be examined in light of
the main precedent in modern law of negligence, Caparo Industries plc v
Dickman [1990], probably also because one of the claims brought by the
plaintiffs is in tort. It is important to note that in this instance, as often in
rectification, the negative particle not is postponed (should not be
discussed as a separate principle > should be discussed not as a separate
principle) so the scope and focus of the negation7 shifts to the
prepositional object complement (Quirk et al. 1985: 1200), “as a separate
principle”.
This shows the inherently antagonistic nature of this structure, which,
because of its contentious dialogic nature, lends itself very well to use in
argumentation.
The rectification may precede the rejected alternative, thus
foregrounding the asserted element and further weakening the refuted one:

(18) But this was achieved by a substantive interpretation of the article and
not by departing from the fundamental principle that the Convention does
not have retroactive effect. (UKSC_2010_0101, §128, Application by
Brigid McCaughey and another for Judicial Review)

In some cases, rectification does not come in the same sentence, and
“but” is preceded by a full stop, as in the following example:

7
On the scope and focus of negation, cf. Quirk et al. 1985: 787-790.
Huddleston/Pullum 2002: 790-799.
18 Chapter One

(19) The principle, as he described it, is not limited to acts or omissions in

the course of an actual engagement with the enemy. But it extends to all
active operations against the enemy. (UKSC_2013_0028, § 94, Smith and
others v Ministry of Defence)

Here the rectifying proposition is expressed in a separate sentence, so

its denial receives more emphasis; and, symmetrically, more emphasis is
laid on the asserted one. Sometimes, rather is used for further
reinforcement, both in combination with but in a clause complex, and
without it in a two-sentence paragraph:

(20) As I have stated, the effect of section 32 is not to close those off, but
rather to require attention to be directed to them. §9 (UKSC_2012_0122,
§9, Kennedy v. the Charity Commission)

(21) […] and the case is not based on the reach of any specific regulation
on which the legality of detention was dependent. Rather it is about the
manner in which the power was exercised. (UKSC_2010_0063 §57,
Walumba Lumba (previously referred to as WL) (Congo) 1 and 2 v
Secretary of State for the Home Department)

The emphasis on the asserted proposition is sometimes increased by

the repetition of the theme, with an echoic effect:

(22) It [an occupying state] could not be expected to take steps to provide
in Iraq the full social and protective framework and facilities which it
would be expected to provide domestically. But the United Kingdom could
be expected to take steps to provide proper facilities and proper protection
against risks falling within its responsibility or its ability to control or
influence when despatching and deploying armed forces overseas.
(UKSC_2013_0028, § 26, Smith and others v Ministry of Defence)

Renchérissement (reinforcement)
A variation on the standard pattern of rectification produces a typically
dialogic structure that is negative only in form, but positive in meaning:
not only … but (also), which is used to correlate two rhematic constituents,
either clauses or phrases. Bres (1999) calls it “renchérissement”, which –
in lack of a literal translation – Dendale (2006) renders as “reinforcement”.
See the following example, which appears in a case in which the
Charity Commission refused to give information to Mr Kennedy, a Times
journalist, about two of its inquiries, invoking the exemption conferred on
it by the Freedom of Information Act to disclose any document created
 Polyphony and Dialogism in Legal Discourse 19

within an inquiry of public interest; here it is the Commission’s power of

disclosure that is being discussed:

(23) As has been seen, I agree that the functions conferred by 1993 Act,
sections 1B-1E, not only give the Charity Commission powers to provide
information of the kind sought by Mr Kennedy, but also give effect to a
general principle of “transparency”. (UKSC_2012_0122, §242, Kennedy v.
the Charity Commission)

In this statement, which is made more salient by the positioning of not

only in sentence initial position and the accompanying subject-operator
inversion, the focus of the negative particle “not” is shifted from the verb
form to the adverb only, and this neutralises the negation. The reader is
forced to look as “given” ground (Quirk et al. 1985: 941) at the first
conjoin (the functions conferred by 1993 Act, sections 1B-1E, not only
give the Charity Commission powers …), which is attributed to a different
point of view. Its content is provisionally accepted and at the same time
presented as being in need of an integration by means of the addition of
the second rhematic constituent (but also give effect to a general principle
of “transparency”), which receives more emphasis and is presented as the
locutor’s point of view. Thus the judge admits the Charity Commission’s
powers of disclosure not merely as a contingent and isolated fact, but as
part of a more general principle of transparency.
In the following examples the not only … but structure does not
involve the whole sentence, but only one element in it, a complement, a
past participle and an adjective respectively:

(24) It may be a crystal clear indication that the parties intended their
agreement to be legally binding, not only upon themselves, but also on the
court. UKSC 2009_0031, §182, Radmacher (formerly Granatino) v
Granatino.

(25) Meantime, however, the creeping emasculation of the common law

principle must be not only halted but reversed.” (UKSC 2010_0107, §85,
Al Rawi and others v The Security Service and others)

(26) It is that the procedural obligation to investigate a death under article

2 of the European Convention on Human Rights (“the Convention”) is not
only distinct from the substantive aspect of the article but is autonomous
and detachable from it (UKSC_2010_0101, §121, Application by Brigid
McCaughey and another for Judicial Review)
20 Chapter One

In example (24) “not” is not in its normal position (“the parties did not
intend…”) and its focus is shifted to the complement thanks to the option
this correlative brings with it

of moving the negative particle out of its normal position following the
operator so as to mark the parallelism between the two coordinated
constituents. (Quirk et al. 1985: 941)

Examples (25) and (26) show the rationale underlying the French
denomination of this pattern, “renchérissement”, as the second conjoin
“reinforces” or, better, amplifies (“renchért”) the content of the first
conjoin – whose absolute validity is limited through the addition of “not
only”.
In other cases, rather than enhancing what is stated in the “not only”
rhematic part of the sentence, the second conjoin simply adds one further
element, in some cases rather inhomogeneous with respect to the previous
one, as in the following instance:

(27) If the control fingerprints were to be inadmissible, not only would

there be a windfall benefit to those who have committed crimes, perhaps of
great gravity, but also defendants would be unable to rely on the evidence
of the fingerprints of others when it was necessary for them to do so in
order to defend themselves. (UKSC_2012_0017, §17, Public Prosecution
Service v McKee (AP) (Northern Ireland)

In this excerpt in which the possible consequences of declaring the

inadmissibility of control fingerprints is considered, the proposition in the
second conjoin simply adds one more consequence to that set forth in the
first one. It can be noted that the two constituents are to some extent
inhomogeneous, as one regards consequences for the securing of criminals
to justice, and the other defendants’ right to defence, so they could not be
effectively conjoined simply by means of and, as this would breach the
only restriction carried by this conjunction, i.e. that the two coordinated
elements “should have sufficient in common to justify their coordination”
(Quirk et al. 1985: 930).
A similar mechanism is at play when this kind of pattern is used to set
out conditions or requisites for the application of a given provision or
precedent:

(29) Thus not only must the story as a whole be in the public interest, but
there must also be a public interest in the publication of the details of the
allegations. (UKSC 2010_0166, §196, Flood v Times Newspapers Limited)
 Polyphony and Dialogism in Legal Discourse 21

Here the Lord Justice is discussing the applicability to the case at hand
of the so called “Reynolds privilege” which operates as a defence for
journalists in libel cases. The first requisite for its application is accepted,
but only as partially valid, so a further requisite is introduced as a
supplementary and ultimate condition.
In light of the examples examined, it can be concluded that the not only
… but also structure is in the service of polyphony, setting on stage a sort
of dialogue between an enunciator responsible for the proposition
presented in the first of its two constituents, and the locutor who partially
accepts it, but adds a further element, asserted as absolutely valid and
attributed to him/herself. Typically, this second constituent expands the
meaning of the first one, expressing something that is more substantial, or
more radical, or stronger, etc. than the first one, thus giving rise to
amplification. In other cases it is used to correlate two relatively
inhomogeneous elements, which could not simply be listed one after the
other connected by and, thus fulfilling an important rhetorical function.

Conclusion
This study has presented an analysis of the use of syntactic negation as
a dialogic device in a corpus of UK Supreme Court judgments, focusing
on the internal property of discourse to incorporate multiple layers of other
discourses.
Findings highlight the complexity and stratification of the system of
‘voices’ in this discourse genre, thus confirming previous studies.
Indeed, the relatively high frequency of the occurrence of indicators of
negation as confirmed by corpus analysis suggests that a particularly
frequent recourse to syntactic negation may qualify as a distinctive trait of
this genre, all the more so because – as Leech (1983) points out – the
decision to use a negative is a marked one, on account of the information
deficit characterising as negative propositions compared to positive ones.
The examination of the contexts where negation occurs indicates that it
is used in association with some of the discursive operations that are
recurrent in legal reasoning, and in particular in appeal judgments, where
the Lord Justices have to take into account not only relevant legislation
and case law, but also the views of judges in lower degree court
proceedings and, when the decision is not unanimous, also those of the
other members of the panel. Furthermore, given the importance of the
cases it hears, which often raise points of law of general public interest, it
is essential that the court’s decisions provide evidence of having
considered and dismissed all possible objections.
22 Chapter One

The fact of actually considering and discussing aspects, arguments,

precedents and legal provisions they do not intend to endorse for the only
purpose of denying or rejecting them rather than simply passing over them
in silence provides evidence of the inherently dialogic approach taken by
the Lord Justices in writing their decisions, which contributes to
conferring an inherently polyphonic character on this discourse genre.

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 Polyphony and Dialogism in Legal Discourse 25

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26 Chapter One

Appendix i: Supreme Court Judgments Quoted in text

UKSC_2009_0031, Radmacher (formerly Granatino) v Granatino.
UKSC_2009_0223, Commissioners for Her Majesty's Revenue and
Customs v DCC Holdings (UK) Limited.
UKSC_2009_0228, Royal Bank of Scotland plc v John Patrick
McCormack Wilson and another.
UKSC_2010_0063, Walumba Lumba (previously referred to as WL)
(Congo) 1 and 2 v Secretary of State for the Home Department -
Kadian Mighty (previously referred to as KM) (Jamaica) v Secretary
of State for the Home Department.
UKSC_2010_0101, Application by Brigid McCaughey and another for
Judicial Review.
UKSC_2010_0107, Al Rawi and others v The Security Service and others.
UKSC_2010_0131, Scottish Widows plc v Commissioners for Her
Majesty's Revenue and Customs (Scotland) - Scottish Widows plc N
Scottish Widows plc v Commissioners for Her Majesty's Revenue and
Customs (Scotland)o 2 v Commissioners for Her Majesty's Revenue
and Customs (Scotland).
UKSC_2010_0166, Flood v Times Newspapers Limited.
UKSC_2011_0022, R (on the application of Quila and another)
(FC)(Respondents) v Secretary of State for the Home Department - R
(on the application of Bibi and another) (FC) v Secretary of State for
the Home Department
UKSC_2011_0025, TRIGGER - BAI (Run Off) Limited (In Scheme of
Arrangement) v Durham - TRIGGER - BAI (Run Off) Limited (In
Scheme of Arrangement) v Thomas Bates and Son Limited - TRIGGER -
Excess Insurance Company Limited v Akzo Nobel UK Limited -
TRIGGER - Excess Insurance Company Limited v Amec plc - TRIGGER
- Excess Insurance Company Limited v Edwards - TRIGGER -
Independent Insurance Company Limited (Appellant) v Fleming and
another - TRIGGER - Municipal Mutual Insurance Company v Zurich
Insurance Company and others - TRIGGER - Municipal Mutual
Insurance Limited v Zurich Insurance Company - TRIGGER -
Municipal Mutual Insurance Limited v Zurich Insurance Company and
Adur District Council and others.
UKSC_2011_0046, North and others v Dumfries and Galloway Council
(Scotland).
UKSC_2012_0017, Public Prosecution Service v McKee (AP) (Northern
Ireland) - Public Prosecution Service of Northern Ireland v Elliott
(AP) (Northern Ireland).
 Polyphony and Dialogism in Legal Discourse 27

UKSC_2012_0122, Kennedy v. the Charity Commission.

UKSC_2012_0135, Durkin v DSG Retail Limited and another (Scotland).
UKSC_2013_0028, Smith and others v Ministry of Defence - Ellis (FC) v
The Ministry of Defence - Allbutt and others (FC) v The Ministry of
Defence.
 CHAPTER TWO

CONCEPTUALISING CORPORATE
CRIMINAL LIABILITY:
LEGAL LINGUISTICS AND THE COMBINATION
OF DESCRIPTIVE LENSES

JAN ENGBERG

Introduction
Legal concepts like Corporate Criminal Liability to be studied here
differ according to where and when they are situated: They change over
time, and even closely related concepts will as a rule be at least partially
different in different national legal systems. These characteristics are
generally studied within the discipline of comparative law. The aim of
such studies traditionally is to describe similarities and differences, among
other things in order to show systematic relations and to investigate
possible alternative solutions to societal problems in different contexts, so
that legal experts gain knowledge about the possibilities they can choose
from when solving similar problems in different legal systems (Brand
2009; Constantinesco 1972; Pommer 2006; Zweigert and Kötz 1996).
This traditional approach is adequate to fulfil the purposes of
comparative law from the point of view of solving practical legal
problems. However, if this strictly legal approach is not enough and we
want to achieve a fuller picture of the conceptual differences across system
and time and especially if we also want to be able to investigate what
factors influence the emergence and evolution of differences and
similarities across legal systems it is necessary to widen the
methodological scope and include a mix of different approaches
supplementing the traditional ones. Achieving such a fuller picture is one
of the main aims of studies in the field of Legal Linguistics as a broad
discipline, focusing among other things upon meanings conveyed by
concepts and upon different factors influencing design and structure of
 Conceptualising Corporate Criminal Liability 29

such meanings (Engberg and Kjær 2011; Engberg 2013; Mattila 2013;
Salmi-Tolonen 2013). Instead of departing from the usual type of question
in comparative law (what are the differences between related legal
concepts across legal systems?), the present chapter as an instance of
Legal Linguistics focuses upon demonstrating how three approaches to the
study of differences and similarities between legal concepts (culture,
socio-functional system, interpersonal communication) may be combined
to a methodological tool rendering a multifaceted picture of such
differences. As I will elaborate later in the chapter, the three approaches,
which describe factors that influence the evolution of the content of legal
concepts and the emergence of differences between national evolution, are
to be used as lenses that focus upon different aspects of conceptual
difference. I will demonstrate the outcome of the application of these
lenses by way of two pilot studies of how the legal concept of Corporate
Criminal Liability is designed and how it develops in different national
legal contexts (Germany, Denmark, Spain).
I see legal concepts as social facts subject to social construction in
connection with their conceptual development and national specification
(Picht 2013: 42-46). The lenses have been selected on the grounds that
they all treat aspects of (the evolution of) conceptual meaning and
knowledge. Furthermore, culture and socio-functional systems are
approaches that are used by legal scholars for the study of comparative law
(cf. references below). Another possible candidate for an approach to be
applied here is the concept of practice (cf., e.g., Schatzki 2001). It has
been developed in order to describe connections between context, text and
knowledge, which are the important aspects to be combined below.
However, as opposed to the approaches selected for the present study,
practice theory does not seem to be recognized to any major extent yet in
the field of comparative law. This would certainly be possible and fruitful,
but will not be the subject of the present study.
So to sum up: the basic assumption underlying the present study is that
a legal concept (here: Corporate Criminal Liability) may exist in different
legal systems, be defined similarly, but be realized as different versions.
By combining different lenses in the description of the different versions
we can get a fuller and thus more justified picture of legal meaning.
The chapter begins with a description of the overall concept of
Corporate Criminal Liability and the German, Danish and Spanish
versions of it on the basis of statutory texts. The next major section
presents the three lenses chosen here and describes how the lenses are
combined to a multifaceted descriptive tool. Finally, the last major section
30 Chapter Two

presents two example analyses of differences and developments, before

the results of the study are summed up in the conclusion.

Similarities and differences in Corporate Criminal

Liability
Basic aspects

The object of the present study is the concept of Corporate Criminal

Liability. Expressed informally, behind the concept lies the idea of using
criminal sanctions against criminal offences committed within the context
of a corporation and to punish not (only) the people acting for the
corporation, but to punish the corporation itself. An example of a more
formal description of the aspects of this type of legal concept is presented
in an EU Council Framework Decision describing an intended framework
of sanctions to be implemented with respective consequences in member
states:

Article 7
Liability of legal persons
1. Each Member State shall take the necessary measures to ensure that
legal persons can be held liable for conduct referred to in Article 2(b),
(c) and (d) and Articles 3 and 4 [JE: on different types of fraud and
counterfeiting] committed for their benefit by any person, acting either
individually or as part of an organ of the legal person, who has a
leading position within the legal person, based on:
Ǧ a power of representation of the legal person, or
Ǧ an authority to take decisions on behalf of the legal
person, or
Ǧ an authority to exercise control within the legal
person, as well as for involvement as accessories or
instigators in the commission of such an offence.
2. Apart from the cases provided for in paragraph 1, each Member State
shall take the necessary measures to ensure that a legal person can be
held liable where the lack of supervision or control by a person referred
to in paragraph 1 has made possible the commission referred to in
Article 2(b), (c) and (d) and Articles 3 and 4 for the benefit of that legal
person by a person under its authority.
3. Liability of a legal person under paragraphs 1 and 2 shall not exclude
criminal proceedings against natural persons who are perpetrators,
instigators or accessories in the conduct referred to in Article 2(b), (c)
and (d) and Articles 3 and 4.
 Conceptualising Corporate Criminal Liability 31

Article 8
Sanctions for legal persons
1. Each Member State shall take the necessary measures to ensure that a
legal person held liable pursuant to Article 7(1) is punishable by
effective, proportionate and dissuasive sanctions, which shall include
criminal or non-criminal fines and may include other sanctions such as:
Ǧ exclusion from entitlement to public benefits or aid;
Ǧ temporary or permanent disqualification from the practice
of commercial activities;
Ǧ placing under judicial supervision;
Ǧ a judicial winding-up order.

Source: 2001/413/JHA Council Framework Decision of 28 May 2001

combating fraud and counterfeiting of non-cash means of payment

The Framework Decision orders the Member States to implement

measures to secure that legal persons, i.e., companies and organisations
with an independent legal personality, may be held liable, independently
of the natural persons actually committing the criminal offence. The
Council does not substantiate the type of measures in more detail. It only
gives the member states the duty to install a system that can impose
sanctions on legal persons. Therefore it is interesting to investigate how
the sketch in the Framework decision is implemented in different
European contexts.
The legal concept of Corporate Criminal Liability has been chosen for
this study, because it has a typical structure of legal concepts in that it
balances different interests against each other. The specific balancing
structure of the concept emerges, because the general concept of a criminal
offence from the 19th century onwards in Europe is developed on the basis
of the human being, i.e., the natural person, as the central figure (Mongillo
2012: 56). Basic differences between natural and legal persons engender
challenges for holding legal persons liable for criminal behaviour:

Within a criminal law system integrally conceived and developed for human
beings, the logical consequence is that a pure creation of the law, the legal
person, lacks the physical-psychical characteristics necessary for the
commission of a crime. A legal person cannot commit an action; cannot have
a culpable mental state; lacks the freedom to make decisions inherent to a
human being and therefore is incapable of culpability or guilt. Moreover, it is
without the emotional capacity to appreciate the punitive aspect of a
sentence, because it challenges traditional ideas of corporations not being
eligible for criminal punishment. (Mongillo 2012: 57)
32 Chapter Two

The easiest way to overcome the problem is to simply hold the

corporation responsible for what its agents have done, i.e., so-called
vicarious liability. However, this clashes with another basic principle in
criminal law, viz., to only hold perpetrators accountable for their own
actions, not those of others (Mongillo 2012: 58). We thus see here a
classical structure of legal concepts as balancing opposing interests that
are in conflict in situations in society:

Figure 2-1 Concept of Corporate Criminal Liability as balance between

interests

The legal concept of Corporate Criminal Liability has to strike a

balance between the opposing interest of society at large and of
corporations. This balance may come out differently, depending on the
relative importance of the interests at a given time, on the existing legal
system, or on the importance given to systematic aspects of the law, to
name but a few possible influences. Consequently, the basic concept laid
out in the framework decision may be fleshed out differently in different
legal systems and at different times. In the following section, we will have
a look at the way the concept has been spelled out in the German, Danish
and Spanish context. We will look at the statutory basis of the concepts in
these three countries and establish the similarities and especially
differences between them.
 Conceptualising Corporate Criminal Liability 33

German statutory basis

In the German context, the central statutory basis for the concept of
Corporate Criminal Liability is a section in the codification
Ordnungswidrigkeitengesetz (OWiG) from 1968. The OWiG treats
unwanted behaviour and the sanctioning thereof like criminal law. It is,
however, explicitly seen as different from criminal law in a strict sense.
E.g., not courts, but organs of the public administration are the central
players of adjudication in the system. Consequently, terms like Strafe
(punishment) are not used in this codification. Instead, the prototypical
sanction is Geldbuße (administrative fine). The liability of corporations for
criminal actions of natural persons acting in the framework of the
corporations is treated in section 30 of the OWiG.1 It consists of six
subsections. In the first subsection, different types of agents capable of
engendering liability on the part of the corporation are mentioned:

x (Members of) boards of the corporation

x Partners or shareholders
x Official representatives and authorized signatories
x People acting as responsible in similar positions

In the second subsection, an upper limit for fines in the context of

Corporate Criminal Liability is set to one million €. Subsection 4 regulates
the special circumstances, under which a corporation may be fined,
although the agent committing the crime does not become subject of a
trial. Subsections 3, 5 and 6 regulate formal aspects of the rule without
relevance for the present discussion.
What we may interpret from this is that the German system solves the
problem of balancing the opposing interests of society and of corporations
by positioning the concept inside a part of the legal system, where the
problem of making legal persons criminally liable and thus subjecting
them to criteria that are irrelevant to legal persons does not emerge. The
system of Ordnungswidrigkeiten is a case of administrative sanctioning of
illegal actions, and thus it is not in any direct way dependent upon the
basic concepts of criminal law. Furthermore, we see in the listing of
people that act for the corporation and may engender liability an exclusive
focus upon people in management positions. To sum up what we found: in
the German version of the concept, sanctions are not criminal (although

1
http://www.gesetze-im-internet.de/owig_1968/__30.html. I have chosen not to
cite the original formulations in the study as that would have meant using
considerable space on the necessary translations of the original texts.
34 Chapter Two

they are sanctions); and only management may impute liability upon the
corporation.

Danish statutory basis

In the Danish context, the concept of Corporate Criminal Liability is
centrally regulated as part of the Danish Criminal Code (Straffeloven),
specifically in sections 25 to 27.2 The sections have been adopted and
included in the criminal code in 1996. The three sections contain the
following regulations:

§ 25: A legal person may be fined, if this option is indicated in or follows

from a concrete statute.
§ 26: The rules apply to any kind of legal person.
§ 27: Criminal liability presupposes that a natural person related to the
legal person has committed a criminal action, or that the criminal
action may be ascribed to the corporation. Public corporations are only
subject to the regulations when they carry out activities parallel to such
carried out by private corporations.

Compared to the German statutory basis, there are three differences of

interest for our purpose here: 1) the Danish concept is part of the normal
criminal system; 2) the rules apply not only to actors directly involved in
management, but to any person related to the legal person; and 3) it is
possible to ascribe the criminal action directly to the corporation, under
specific circumstances even to a public corporation like a municipality.
Thus, the scope of the concept concerning relevant actions is far larger in
the Danish context than in the German.

Spanish statutory basis

Finally, we will have a look at the way the concept of liability of
corporations for criminal activities is realised in the Spanish context. The
relevant regulations are part of the Spanish Criminal Code (Código Penal),
section 31 bis.3 This section was adopted in 2010, i.e., it is a fairly recent
regulation. It consists of five subsections, regulating different aspects of
the concept:

2
https://www.retsinformation.dk/forms/r0710.aspx?id=164192#Kap5.
3
http://www.boe.es/buscar/act.php?id=BOE-A-1995-25444&tn=1&p=201412
04&vd=#a31bis.
 Conceptualising Corporate Criminal Liability 35

Subsection 1: The regulations are relevant for actions by legal

representatives and administrators as well as by persons who these natural
persons have to control.
Subsection 2: Corporate Criminal Liability presupposes that a criminal
action is committed by any of the kinds of natural persons indicated in
subsection 1, even if it is not possible to individualize or prosecute the
concrete person.
Subsection 3: Factors mitigating the liability of the natural persons do not
necessarily affect the liability of the legal person.
Subsection 4: A closed list of measures is presented, which the corporation
may adopt in order to mitigate the sanctions in connection with criminal
action committed in the corporation: contact the authorities, cooperate in
the investigation, intend to diminish the consequences of the action,
establish compliance programs to prevent criminal actions.
Subsection 5: Public bodies are not subject to the regulations.

Like the Danish version, the Spanish version of the concept is part of
the regular criminal system and thus subject to the balancing of incoherent
interests. Concerning the question of whose actions may engender
corporate liability the Spanish version seems to be between the German
and the Danish versions: focus is upon actions of the management level,
but also actions by other agents of the corporation may engender liability,
if the management level is responsible for these agents. Finally, the level
of detail in the regulations is higher in the presentation of the Spanish
concept than in the statutory presentation of the other two versions of the
concept. E.g., only the Spanish concept has explicit presentations of
mitigating procedures, whereas the Danish and German versions are fairly
general regulations, mainly introducing the concept in order for it to be
specified in more concrete regulations on specific types of offences
elsewhere in the statutory system.

Comparative situation
The following table sums up the similarities and differences in the
statutory presentation of the versions of the concept:
36 Chapter Two

Criminal code Level of detail Relevant natural

vs. in presentation persons
administrative engendering
system liability

German Admin Low – general Management

version rule

Danish CC Very low – Any natural

version general rule person related to
corporation

Spanish CC Higher – more Mainly

version specific rule management

Table 2-1 Similarities and differences in the statutory presentation of

Corporate Criminal Liability in German, Danish and Spanish context

We now have an overview over the national versions to be studied as

they are described in the main legal source of the respective legal system,
the statutory basis. However, one of the specific characteristics of Legal
Linguistics as a broad discipline interested in conceptual meaning is to
take seriously the fact that statutes are not the only communicative
instruments influencing the evolution of a concept. Although statutes have
a privileged position in the process of interpreting the law in all three legal
systems investigated here, communication using other textual vehicles like
court decisions, commentaries presenting the doctrine and scholarly
articles discussing the correct interpretation and application of concepts
are important players in the communicatively driven process of developing
the meaning of a concept in the group of legal specialists (Engberg 2010).
In the following section I will present in more detail the Knowledge
Communication Perspective and the three lenses that I claim to be useful
for achieving the desired fuller and more faceted picture of differences and
similarities between national versions of the same basic legal concept.

Three Descriptive Lenses – Knowledge Communication

Perspective
The three lenses chosen (culture, socio-functional system, interpersonal
communication) represent three different sets of factors influencing the
 Conceptualising Corporate Criminal Liability 37

emergence of differences and the engendering of development in legal

concepts.4 It is my basic claim that a combination of the three lenses
within the framework of Legal Linguistics will produce an adequate
description of the concept versions, their similarities and their differences.
This is the case, among other things, because the three lenses combine a
social and a more individual perspective. The combination is held together
by the fact that all three approaches study legal concepts as specialized
knowledge, but from different vantage points. The multifaceted character
emerges because the different lenses focus upon different aspects:

The lens of culture focuses upon the influence from stable

elements of (national) culture outside the realms of the group of
legal experts.
The lens of socio-functional systems focuses upon system factors
inside the group of legal experts as a closed system.
The lens of interpersonal communication focuses upon the
influence of the activities of individuals upon the emergence and
development of socially held knowledge elements.

Apart from constituting together a methodological approach inside the

discipline of Legal Linguistics, the three lenses may be subsumed under
the general heading of studies of Knowledge Communication. This is an
approach to the study of specialized knowledge in general which focuses
upon the fact that knowledge as shared knowledge emerges from
communicative interaction (Ditlevsen 2011; Engberg 2012: 124-126;
Kastberg 2007). Studies of Knowledge Communication are typically
interdisciplinary ventures. In brief, the study of Knowledge Communication
in the sense used here may be described as follows:

The study of Knowledge Communication aims at investigating the

intentional and decision-based communication of specialised knowledge in
professional settings (among experts as well as between experts and non-
experts) with a focus upon the interplay between knowledge and expertise
of individuals, on the one hand, and knowledge as a social phenomenon, on
the other, as well as the coping with knowledge asymmetries, i.e., the
communicative consequences of differences between individual knowledge
in depth as well as breadth.

4
For another application of the lens approach to the description of legal concepts,
cf. Engberg (2015).
38 Chapter Two

Knowledge is thus conceptualized with a simultaneous emphasis on

knowledge as a collective unit and on the role of individuals and their
individual insights when describing and explaining knowledge and
knowledge developments: Knowledge is seen as the insights held and
shared by individuals belonging to a peer group, underlying the process of
ascribing meaning in communicative interaction (Engberg 2007: 4-5).
Important sources of inspiration for the Knowledge Communication
approach are Wittgenstein’s theory of meaning as use and Weber’s ideas
of sociology as the interpretative study of social actions and their
intentional backgrounds.
The relation between the lenses in a Knowledge Communication
perspective is presented in the following Fig. 2-2.

Culture

Knowledge

Interpersonal
Socio-functional communication
system

Figure 2-2 Combination of lenses for the study of legal concept as

specialised knowledge

In the following subsections, I will describe the three lenses and

demonstrate what they are most appropriate to describe.
 Conceptualising Corporate Criminal Liability 39

The Cultural Lens

An important factor influencing the national versions of a legal concept
is, of course, the (national) cultural context. When observing legal
concepts and their development through this lens in the context of
comparative law, emphasis is prototypically upon law as expression of the
cultural specifics of a nation (cf., e.g. Beck 2011; Legrand 2008). Object
of study are the characteristics of the cultural background which are seen
as scaffolding and delimiting the thinking and thus the (shared) knowledge
in a society. Furthermore, interest is in how characteristics of a more
general national culture are reflected in characteristics of legal concepts.
The scaffolding and delimiting function stems from the assumption that
the way an individual understands a legal concept is in important ways
inherited. Culturally determined meanings arise irrespective of any
subjective preferences (Legrand 2008: 220). Culture is carried mainly by
language due to the characteristic of language to deliver the shared basis
for communication and understanding within a society. At the same time
culture is seen as something lying outside actual communicative interaction,
influencing and guiding actual understanding. Some propagators of the
approach even postulate that cultural differences prevent people from
different national legal cultures to fully understand each other even if they
read translations of legal texts from the other national legal culture (e.g.,
Beck 2011: 71, 80). Focus is upon the collective side of knowledge,
presupposing its dominant role in communication. The approach tends to
conceptualise culture as mainly static: Evolution of a concept is possible;
but it mainly happens in the form of concepts being adjusted to the
existing cultural scaffolding when introduced into or emerging within a
legal culture.
Looking at the strengths and weaknesses of the lens, it tends to be
somewhat weak in explaining actual developments especially in the form
of travelling concepts that are introduced from outside (e.g., the concept of
stalking that emerged in European jurisdictions as a criminal offence in the
first decade after 2000). On the other hand, the approach is strong in
giving explanations of deeply rooted distinctions between concept
versions. Therefore, the approach is relevant here, despite its weakness in
coping with actual development of legal concepts. In the section with
exemplary analyses below, I will give an example of this kind of analysis.
It is obvious that not all researchers working with culture as descriptive
lens in connection with comparing legal concepts support the idea of
culture as predominantly static. Meyer (2013), for instance, suggests a
somewhat different approach to assessing cultural aspects of law. Her
approach sees culture as something which is basically upheld by the
40 Chapter Two

members of a culture through performation of the cultural characteristics.

Therefore, in order to investigate national legal culture she studies the
ways cultural characteristics are spelled out concretely, giving preference
to more of a bottom-up process of assessing culture – and giving more
power to the members of a culture to change and modify it by performing
the culture in a specific way. As we shall see, there are important overlaps
between this approach to the description of legal culture and the lens of
communicative interaction to be presented below. I have chosen to work
with the presented cultural approach, however, because it has a longer
tradition in comparative law.

The Socio-Functional Systems Lens

The main theoretic source for the approach from comparative law that
underlies the socio-functional systems lens is the work by Luhmann
(1997). A central aspect of this work is the idea of self-referential socio-
functional groups as the central entity in the study of sociology. The basic
idea is that social groups (e.g., a national legal community), are
independent symbolic systems of meaning. Such groups constitute a
specific part of the public specified by the societal functions they perform
(funktionsspezische Öffentlichkeit). The system of meaning underlying and
constituting the group creates its own realities among the members
reacting to the outside through the process called autopoiesis:

Autopoietische Systeme sind Systeme, die nicht nur ihre Strukturen,

sondern auch die Elemente, aus denen sie bestehen, im Netzwerk eben
dieser Elemente selbst erzeugen. (Luhmann 1997: 65)

A system reacts to its environment in order to establish that it is

different from the environment of the system (Luhmann 1997: 66). This
difference consists in a specific structure of the system which differentiates
it from its surrounding environment. Such a structure constitutes a specific
set of internal conditions concerning the type of meanings that may
emerge. Thus, as was the case in the lens of culture, focus is upon
characteristics of the group, of knowledge as a collective entity. But where
the cultural approach focuses upon the influence of contextual (or in the
terminology of socio-functional systems: environmental) factors, i.e.,
elements of the national culture, studies applying the socio-functional lens
are especially interested in the internal structure of the system and its
conditioning function upon the process of generating meaning for
members of the group, thus distinguishing them from the environment of
the system.
 Conceptualising Corporate Criminal Liability 41

In the context of studying the development of legal concepts an

important part of the socio-functional systems lens is that the internal
structure of the system, which engenders the results of the autopoiesis
process, is seen as establishing conditions of what new meanings may be
attached to existing meanings (Fateh-Moghadam 2011: 56). The idea is
that meanings in the system may change, but only in steps limited by the
internal structure of the system. In the section with exemplary analyses
below, we shall see an example of the consequences of this view.
As opposed to the lens of culture presented above, we thus here see
that the possibility of change is built into the description of the basic
elements of the theory: The process of autopoiesis creates meaning in an
internal process and as reaction to its environment. But in this lens this
process is not seen as determined from outside, as it is described in the
lens of culture. And the meaning creation process is only determined by
the internal structure of the system in the way that this structure delimits
the range of each step of change. As the motor of such a process of
development systems theory offers communication. However, the concept
of communication is one in which acting communicators play no central
role. Luhmann explicitly presents communication as being in opposition to
the concept of action: Communication to him is not action (Luhmann
1997: 608). This is a consequence of Luhmann’s aim to create a theory of
sociology that focuses upon aspects of social systems that are inherently of
sociological nature and thus to omit disturbing elements like human
intention that are too multifaceted to offer themselves to a detailed
scientific explanation. This move by Luhmann is, among other things,
driven by a rejection of Weber’s ideas of sociology as the interpretative
study of social actions and their intentional backgrounds, which I
presented above as being an important source of inspiration for the
development of the Knowledge Communication approach that the socio-
functional lens was intended to contribute to. How can that work? The
answer lies in the fundamentally eclectic nature of the Knowledge
Communication approach. The idea is to work consciously eclectically in
order to achieve a pluralist and multifaceted vision of the studied objects.
Using the results from one type of analysis (like an analysis applying the
socio-functional systems lens) in combination with the results of other
types of analysis is deemed sensible and methodologically sound, if 1) the
analysis supplies us with new perspectives compared to the other lenses
applied and if (and this is central) 2) the applied lenses supplementing
each other in the study have sufficient overlap in their descriptive concepts
to establish an argumentative interface between them, which may help us
gain a multifaceted, but still coherent picture of the studied object.
42 Chapter Two

I claim that this is the case concerning the combination of the cultural
lens with the socio-functional systems lens in this study. Both lenses
concentrate upon factors positioned outside the level of individual
intentions of the members of social groups. The cultural lens in the
approach chosen here departs from the idea that communication and the
creation of meaning and knowledge is at least influenced and often even
determined by cultural characteristics situated outside of individual
instances of communication. The socio-functional systems lens, on the
other hand, sees socio-functional groups as closed systems in which the
construction of meaning and knowledge is influenced and determined by
the internal structure of the system. Although these two approaches deeply
disagree upon the importance of internal vs. external factors, they may be
sensibly combined in a concrete analysis due to the fact that each lens
focuses upon what is outside the scope of the other. The socio-functional
systems lens neglects the environment (as this cannot influence the closed
system directly), which is, on the other hand, exactly the focus of the
cultural lens. And the cultural lens neglects the internal factors of groups,
which is on the other hand exactly the focus of the socio-functional
systems lens.
Concerning the apparently problematic relation between especially the
socio-functional systems lens (but also the cultural lens), on the one hand,
and the ideas of Weber, on the other, it is important to notice that in both
of the lenses presented so far, focus is upon factors influencing individuals
as members of a group. But none of the approaches claim that social
groups are not constituted by humans performing individual actions. The
actions (and intentions) of the individuals are merely not in the focus of
the descriptions of the lenses or of the theories underlying the lenses. In
order to combine the interests of the different approaches and thus achieve
a fuller picture, I suggest that we leave out the discussion of whether a
contextually oriented (culture or system) or an action oriented approach is
the right way to describe the emergence of social facts like meaning and
knowledge. Instead I find it sensible to accept the idea propagated in
connection with my presentation of the Knowledge Communication
approach above that such social facts are simultaneously individual and
collective and that a valid description should therefore combine lenses that
may focus upon both sides. On these grounds, I propagate the idea that it is
descriptively sensible to include, e.g., a socio-functional systems lens in a
study of the evolution of legal concepts. However, I also claim that it is
important to supplement this lens with a lens focusing upon the individual
aspects of the studied object, among them the individual actions of the
participants as suggested by Weber. In the present study, I will for this
 Conceptualising Corporate Criminal Liability 43

purpose introduce the lens of interpersonal communication in the

following subsection.

The Lens of Interpersonal Communication

The last lens to be presented in this study is the lens of interpersonal
communication. Behind the decision to include this lens lies the idea that
concepts cannot float freely through a social group: Ideas and concepts
have to be held by individuals in order for them to be constituted as social
facts created inside a social group and thus to be influential upon the
thinking in the group. Furthermore, this process is dependent upon
communicative interaction carried by some communicative vehicle in the
form of a text or a signal in the widest sense of the word. Otherwise, it
would not be possible for members of a social group to have access to the
social facts. For they are constituted by the characteristic that they are
applied in the same way by members of a group. Consequently, in order to
produce a sensibly multifaceted picture of, e.g., the evolution of the
concepts investigated in this study I need a lens that can focus upon the
communicative steps undertaken by individuals as members of the social
group. And I need it for my Knowledge Communication purposes despite
the fact that this need is foreign to the inherent needs of, e.g., Luhmann’s
theory of sociology.
The type of study of interpersonal communication relevant here is the
study of how participants in communicative processes co-construct
meanings and thus build up individual, but shared knowledge by way of
(textual) communication. The approach behind the lens follows ideas from
cognitive and constructivist semantics (cf., e.g., Lakoff 1987; Petruck
1996; Ziem 2014). Any time individuals use and discuss ideas and
concepts that are or become part of their knowledge, they go through a
mental process of (re-)constructing meaning on the basis of their pre-
existing stock of knowledge. This (re-)construction process is in principle
open concerning its end result, at least over time and according to different
situations. Thus, in accordance with Wittgenstein’s ideas of word meaning
as determined by use there is no such thing as a fixed essence of the
meaning of words. What a word means depends upon what part of
knowledge users of the word connect the word with. And this connection
process is dependent upon the communicative processes of co-
construction. As a consequence, the content of any concept may change
over time with changes in the knowledge of participants based upon own
experience and experience gained through communicative interaction with
others.
44 Chapter Two

The described characteristics of this lens create an interface with the

lens of socio-functional systems. The two approaches share the idea of
meanings as being constructed through communication and the ensuing
idea that meaning is inherently dynamic, albeit within the confines of the
existing knowledge mentally connected to the word. One of the added
values from combining the lenses is that the lens of interpersonal
communication is interested in the active processes at the level of
individual actors leading to stability and change in meaning and
knowledge. Luhmanian sociology as such does not perceive this aspect as
centrally important for their theories. But for a Legal Linguistics study of
the evolution of concepts like the one presented here, it is relevant to
include this aspect as it constitutes one of the actual drivers of the
development and differences that we need to describe. The socio-
functional lens shows us what system-internal conditions distributed
across the members of the group exist that makes some and not other
meanings emerge. On the other hand, the lens of interpersonal
communication may focus upon the concrete textual processes that are the
vehicles of the (re-)construction process and thus highlight possible
processes of conceptual evolution in detail as we shall see in the example
analysis given in the following section of this paper.
The lens of interpersonal communication also has an interface with the
cultural lens in the fact that both are interested in social facts like traits of
national culture. But where the cultural lens at least in its traditional
comparative law version tends to see traits of national culture as shared but
external and stable factors influencing the thinking and thus the knowledge
of people inside the culture, the lens of interpersonal communication in the
approach presented here emphasises that the knowledge held by
individuals and being (re-)constructed in concrete communicative processes
is distributed individually among members of a social group. To this
individual knowledge belongs also (partly tacit) knowledge about the
shared factors constituting the cultural factors. But it is at least possible to
hold knowledge about cultural factors simultaneously with knowledge
about how the individual disagrees with it. Thus

(t)he knowledge component of our being is conceptually separable from

our relationships and group memberships, the social dimensions of our
lives. (Barth 2002: 2)

The knowledge of individuals, also their knowledge about cultural factors,

emerges from their personal experiences and insights, as well as from
learning from the experiences and insights of others, i.e. from interacting
communicatively with others. So here, too, the added value of supplementing
 Conceptualising Corporate Criminal Liability 45

the cultural lens with the lens of interpersonal communication lies in

introducing a driver that may explain how cultural factors become
influential for the design and structure of concepts in different social or
cultural groups. The added value of the lens of interpersonal
communication in relation to both of the other lenses is thus to explain
how cultural and system aspects may seep into the stock of knowledge of
individuals, but also how new insights or positions held by individuals and
reflected in their knowledge may seep into the culture or the socio-
functional system.5

Example analysis
In order to demonstrate my approach to designing studies that combine
the analytical lenses presented above, I work in this section with two of the
examples of conceptual differences that were found above in the
introductory comparison of the national versions of the concept of
Corporate Criminal Liability. The first example is the difference between
positioning the concept inside or outside of criminal law in a strict sense.
Here I have concentrated upon the difference between Germany and
Denmark. The second example studies the difference in the position of the
aspect of compliance programs as measures oriented towards mitigating
sanctions in the Danish and the Spanish context.

First example: Position in legal system between Germany

and Denmark
As we saw, the German version of the concept of Corporate Criminal
Liability is positioned outside of the system of criminal law. Instead, it is
placed inside the administratively based system of Ordnungswidrigkeiten.
In the Danish context, on the other hand, the concept is placed in the
introductory part of criminal law where the basic aspects of the legal
system are regulated. It is thus placed centrally inside the field of criminal
law (as it is in the Spanish context, too). The German solution may be
interpreted as a way of avoiding the balancing problems that emerge
because of the clash between the individualistic and human-based way
criminal law is constructed in European legal systems, on the one hand,
and the wish to sanction corporations for criminal behaviour, on the other.
In order not to create an inconsistency in the system of German criminal

5
My thanks to Juliette Scott, University of Bristol (personal communication) for
making me aware of this image of the central processes here.
46 Chapter Two

law, the German lawmaker avoids the problem by positioning the concept
in a system where no barrier exists against sanctioning legal persons
(Hermanns 2005). In the Danish case, on the other hand, the inconsistency
seems not to have been deemed a sufficiently important problem to
prevent the lawmaker from positioning the system for sanctioning legal
persons in the context of traditional criminal law.
In order to find out whether this hypothetical result from the study of
statutes is reflected in the actual knowledge of legal experts in the two
systems and thus to begin corroborating the hypothesis, the lens of
interpersonal communication may be helpful. By investigating the way the
positioning of the concept is treated in scholarly texts in the two countries
we may flesh out the characteristics of the different versions of the concept
from the chosen perspective.6 I have carried out a small exemplary pilot
study, searching the internet for German and Danish texts on the topic and
investigating how the aspect of the concept relevant here is talked about in
the two different settings.
In the German texts that I found, the impossibility of applying criminal
sanctions for legal persons is dominantly presented as a non-debatable
fact, e.g. visible in the following quotation:

Example 1: Täter oder Teilnehmer einer Straftat kann nur eine natürliche
Person sein. Juristische Personen sind im strafrechtlichen Sinn nicht
handlungsfähig.7 (Hermanns 2005)

Furthermore, in an answer from the German Ministry of Justice in the

German parliament in 1998, we find the following expression in the basic
comments preceding the actual answer to the parliamentary questions:

6
Following a similar idea, Orts and Almela (2014) investigate differences in the
general conceptualisation of the concept of ‘corruption’ in an English and a
Spanish context through a corpus analysis of the use of the specialised legal
terminology on corruption in newspaper texts. An important difference between
that approach and this study is that I investigate the details in the structure of the
specialised legal concept through a study of its position in interpersonal
communication; the study by Orts & Almela, on the other hand, study the
influence of the specialised legal conceptualisation on the conceptualisation of
similar concepts in the general public. Felder (2003) on the German concept of
Sitzblockade and the reflection of its evolution in the general media also shares
interest with the study of Orts and Almela.
7
“Perpetrator or participant in a criminal offence only may be a natural person.
Legal persons are not capable of acting in the sense of criminal law.” (my
translation, JE)
 Conceptualising Corporate Criminal Liability 47

Example 2: Die Thematik (Corporate Criminal Liability, JE) tangiert die

Grundstrukturen des materiellen Rechts und des Verfahrensrechts. Sie
birgt gravierende Verfassungs- und auch zivilrechtliche Probleme in sich.
Es bedarf sorgfältiger Prüfung, ob Handlungsbedarf für den Gesetzgeber
besteht.8 (Bundesregierung 1998)

The gist of the parliamentary question is whether the existing measures

against criminal offences in the context of corporations are sufficiently
efficient. Before going into answering the concrete questions, the ministry
gives the basic comments above. It is visible on this basis that the ministry
sees the system clash in introducing the concept of Corporate Criminal
Liability in German criminal law as a serious problem.
Finally, Hermanns (2005) refers to a German journal article that
actually suggests a revised theory of Corporate Criminal Liability. In this
text, we find the following sentences:

Example 3: Es besteht also aller Anlaß, die Emergenz kollektiver

Unternehmenshaftung, die das nationale, überstaatliche und ausländische
Strafrecht augenblicklich erlebt, zuletzt im neuen Code penal in
Frankreich, schärfer zu beleuchten und das Verhältnis zwischen
individueller und kollektiver Verantwortung von Grund auf zu
thematisieren. Erst daraus könnte sich eine verläßliche Basis für die
strafrechtliche Unternehmenshaftung ergeben.9 (Alwart 1993: 754-755)

Again, even this sceptic German scholar, who wants to have sanctions
against corporations introduced into the system of criminal law,
propagates to change the system instead of merely accepting a clash of
positions as an answer to the quest of balancing the interests.
It would be necessary to perform an actual corpus analysis of a larger
collection of texts to have a detailed picture of how the concept is
textualised in the interpersonal communication among German legal
scholars. However, already the preliminary analysis of the three texts

8
“The topic touches upon the basic structures of substantive and of procedural law.
It contains serious problems in the field of constitutional and also civil law.
Meticulous tests are necessary on whether the legislator has an obligation to act.”
(my translation, JE)
9
“There are thus many reasons to put the spotlight on the emergence of collective
liability of companies happening these days in national, supernational and foreign
criminal law, recently in the new Code Penal in France and to speak in a basic way
about the relation between individual and collective liability. Only departing from
here a trustworthy basis for the criminal liability of companies may unfold.” (my
translation, JE)
48 Chapter Two

reported here show us that the system clash holds a central position as
being problematic in the scholarly interpersonal communication on the
concept.
Looking at the Danish situation, on the other hand, we do not see the
same interest in the systematic problem. E.g., in an early article on the
topic, reviewing a doctoral dissertation on the necessity of developing a
system inside criminal law for fining corporations as such, we find the
following description of the suggested legal system:

Example 4: Ved langt de fleste straffelovsbestemmelser vil udkastets

virksomhedsansvar forudsætte bevis for enkeltpersoners forsætlige forhold,
men straffelovens skyldkrav kan fraviges hvis der foreligger
organisationsbrist i driften af den juridiske person.10 (Waaben 1986)

The author expressly accepts the necessity of including an exception in

order to find a space for the wanted sanctioning system. A similar position
is taken by another professor of law when discussing the suggestions in
the same doctoral dissertation:

Example 5: It should not be denied that this method may have its scientific
value. It is, however, striking that hardly many judges or prosecutors have
met these problems in practice in the last many years, It is today almost
unthinkable that the defender of an indicted company will claim that
charges should instead have been filed against the CEO or another person.
This results partly from the fact that the corporate liability thanks to many
years of successful experience is seen as natural and correct. (Toftegaard
Nielsen 1988)

Interestingly, the professor indicates that he is aware of the systematic

problem. However, he sees it as a problem for jurisprudence, but not for
practical legal work – and that the latter is the dominating factor. Thus, the
position presented in the text is that if a concept is developed in a specific
way in legal practice and it solves the societal task, then a clash in the
system may be neglected. The main problem treated in the doctoral
dissertation is consequently that a central regulation is missing in the
criminal code. Apart from that practical legal problem, which was solved
with the regulations treated above in 1996, no serious system problem is

10
“In connection with the majority of the regulations in criminal law the corporate
liability of the draft will presuppose proof of intentional behavior of individuals,
but the requirements of (personal, JE) guilt in the criminal code may be dispensed
with if there is an organizational breach in the management of the legal person.”
(my translation, JE)
 Conceptualising Corporate Criminal Liability 49

being treated in the scholarly interpersonal communication. Thus, the

difference that we found on the basis of the preliminary analysis of the
statutory basis is confirmed in the way legal scholars talk about this aspect
of the concept of corporate criminal liability. The system problem
occupies no central role in the concept judged by the way it is talked about
in the texts. And even if it is taken up, the approach to it is much less
skeptical than is the case in the German context.
A next step in the type of analysis presented here is to see whether a
combination with one of the other two lenses can give us a fuller picture of
the concept. I suggest that the cultural lens is useful for explaining why the
German and Danish versions differ in this respect. Through this lens, the
reason for the fact that the German concept has been placed inside the
system of Ordnungswidrigkeiten could be found in the generally high
value given to systematicity and logics in the national German culture. On
the other hand, the fact that the Danish concept is placed inside the regular
system of criminal law and furthermore is the one with the broadest scope
(any type of activity within the realms of the corporation) may be
explained on the basis of a general preference for the interests of the
community over the interests of the individual, on the one hand, and
general scepticism towards the value of principled systems in the solution
of problems. Both of these characteristics may be found in other parts of
the Danish culture than law. They would thus be examples of differences
between the national versions reflecting characteristics that are not limited
to the legal settings, but are rather reflections of more general parts of the
national cultures.
It would also be possible to describe the differences as a consequence
of system-internal characteristics in the socio-functional system of Danish
and German law, respectively, and that may definitely be interesting and
relevant. However, only in combination with the cultural lens is it possible
to focus the fact that the found characteristics have a larger scope than just
the legal field. And again, that is an interesting aspect to study from the
point of view of Legal Linguistics.

Second example: Position of Compliance Programs in Spanish

and Danish version
As we saw in the presentation of the statutory basis, the most detailed
description is the one in the Spanish statute. Among other things, in
subsection 4 of the section in the Spanish Criminal Code four types of
actions are presented, which, if taken by the corporation, may mitigate
possible sanctions for criminal actions committed by agents. One of these
50 Chapter Two

mitigating actions is to establish compliance programs in order to prevent

and discover criminal actions at an early stage:

Example 6: Haber establecido, antes del comienzo del juicio oral, medidas
eficaces para prevenir y descubrir los delitos que en el futuro pudieran
cometerse con los medios o bajo la cobertura de la persona jurídica.11
(Código Penal, § 31bis, 4d)

By including compliance programs in the statute the Spanish concept

gives a more detailed presentation than the two other national variants that
we have been looking at. Furthermore, the detailed aspect is presented in a
more prominent position insofar as it is explicitly mentioned. We may
therefore have as a hypothesis that the aspect of compliance programs
occupies a more prominent position in the general content structure of the
national variant of the concept.
On the basis of this hypothesis, I did another small-scale pilot study of
randomly chosen articles from the internet on the newly introduced
Spanish variant of the concept. The section 31bis was adopted in 2010.
Using the statutory expression for the concept (Responsabilidad penal de
las personas jurídicas) as keyword for a Google search, I found five
relevant scholarly articles published between January 2010 and April
2011, i.e., around the time of the adoption and introduction of the concept.
Of these articles, five treated the aspect of compliance programs. So the
fact of compliance programs being mentioned in the statute correlated with
the importance of the aspect in the scholarly interpersonal communication
on the topic. Consequently, the hypothesis is preliminarily corroborated by
the results of the pilot study of the scholarly communicative behavior.
However, the fact of being part of the statute is not a guarantee for
something to be actually communicatively central. The statute in
subsection 2 also contains rules about the distribution of liability between
natural and legal persons:

Example 7: La responsabilidad penal de las personas jurídicas será

exigible siempre que se constate la comisión de un delito que haya tenido
que cometerse por quien ostente los cargos o funciones aludidas en el
apartado anterior, aun cuando la concreta persona física responsable no

11
“Having established, before the beginning of the oral hearings, efficient means
in order to prevent and detect offences that in future may be committed by way of
the corporation or covered by it.” (my translation, JE)
 Conceptualising Corporate Criminal Liability 51

haya sido individualizada o no haya sido posible dirigir el procedimiento

contra ella. […].12 (Código Penal, § 31bis, 2)
This subsection describes another important consequence of the newly
introduced statute and also one which introducing compliance programs
may help mitigate. But despite the relations between the aspects treated in
the two subsections, the latter aspect is only mentioned in one of the five
studied scholarly articles. What this shows us is that studying statutes and
their textual structure is not enough to be able to find out about the relative
position and thus the importance of an aspect of a concept at a given point
in time. We need to take a broader look at different parts of the scholarly
legal communication and thus of the interpersonal communication in the
respective legal field.
In order to find out whether a corresponding aspect exists in the Danish
version of the investigated concept of corporate criminal liability, I have
studied central texts from the scholarly interpersonal communication:

 The central statutory rules (StrL § 25-27) do not mention

compliance programs as mitigators.
 The recent commentaries on the rules (Greve and Langsted 2005;
Greve, Jensen, and Toftegaard Nielsen 2005; Toftegaard Nielsen
2008) do not mention compliance programs as mitigators.
 Investigated journal articles (Hjortenberg and Reckendorff 2000;
Kruse 1988; Madsen 2004; Toftegaard Nielsen 1988; Waaben
1986) do not mention compliance programs as mitigators.

First result to be gathered from the investigation is that the aspect

which is explicitly stated in the Spanish statute and which acquired a
central position in the Spanish discussion among lawyers and relevant
professionals seems to be communicatively absent in the Danish context.
The selection of texts above covers a major part of the texts existing on the
concept of Corporate Criminal Liability as such in the studied genres. The
selection of texts cover all articles on the concept in the leading Danish
scholarly legal journal Ugeskrift for Retsvæsen as well as the centrally
relevant legal commentaries. So I would claim that it is safe to say that
compliance programs play no role in communication of the concept of
Corporate Criminal Liability in a Danish scholarly context.

12
“The criminal liability of the legal persons may be executed if the commitment
of an offence is asserted that must have been committed by someone holding
positions or performing functions referred to in the previous subsection, even if the
concrete responsible natural person may not have been individualized or it may not
have been possible to open court proceedings against the person. […].” (my
translation, JE)
52 Chapter Two

However, when looking specifically for the concept of ‘compliance

program’ the situation is a little different. A Google search for the term in
Danish sources produced the following results:

 In connection with the proposal of a new Danish Competition

law (2012), the comments by the Ministry mentions twice “a so-
called ‘compliance program’” (8, 22);
https://www.retsinformation.dk/Forms/R0710.aspx?id=143687).
 This is taken up in an informative comment by a leading
Danish law firm
(http://www.bechbruun.com/da/Videncenter/Nyheder/2012/Okto
ber/Forslag+til+ndring+af+konkurrenceloven+fremsat).
 The Danish state authority on competition law in a guide on
supervising contracts explains what a compliance program is and
that it may be a mitigating factor (19-21);
http://www.kfst.dk/~/media/KFST/Publikationer/Dansk/2014/20
140402%20Vejledning%20om%20kontraktopfoelgning.pdf).
 The Danish bank ‘Danske Bank’ on its website presents its
compliance program in connection with avoiding competition
law problems (https://danskebank.com/da-dk/om-os/Corporate-
Governance/kontroller/compliance/Pages/Konkurrenceretlige-
adfaerdsregler.aspx).
 In an article in the Danish business newspaper Børsen in
connection with a recently proposed statute on economic crime,
compliance programs are mentioned and explained (Christensen
and Hoffmann 2013).

Obviously, the concept of ‘compliance program’ exists in the

conceptual stock of the Danish legal community, as it occurs in the
interpersonal communication of this community on such concepts like
‘competition law’ and seemingly also of the concept of ‘economic crime’
as a cover term. It is just not (yet) connected to the overall concept of
Corporate Criminal Liability, as it is in the Spanish context. Consequently,
looking at the results of the small study of the Danish situation through the
lens of socio-functional systems, we may say that the conditions for a
development of the Danish version of the concept of Corporate Criminal
Liability are present albeit at a more specific level. On these grounds, the
disposition for a rise in importance of the aspect as part of the Danish
version of the concept of Corporate Criminal Liability exists. A broader
study of where the concept of ‘compliance program’ is applied in different
parts of public communication may help us describe the existing condition
in more detail and thus may help predict future developments.
 Conceptualising Corporate Criminal Liability 53

Concluding remarks
With the present study I wanted to show an example of how a multi-
lens approach may contribute to a multifaceted picture of processes of
conceptual evolution (temporal) and differentiation (national). The basic
idea is that a multi-lens approach is efficient, especially if it combines
lenses that are highly different in their basic assumptions. The present
combination of lenses is a case in point in this context: in the analysis in
this study I combine a cultural approach, seeing group-external aspects
like cultural characteristics of a national culture as decisive for meanings,
with a systems theory approach, seeing group-internal system aspects like
the basic legal assumptions of the legal experts of a legal system as
decisive. And I combine two approaches (culture and socio-functional
systems) focusing upon aspects positioned outside the individual
communicative interaction with an approach focusing upon the factors
involved and the detailed characteristics in such individual communication
(interpersonal communication). In connection with the presentation of the
different lenses I have suggested two criteria that have to be fulfilled in
order for such seemingly incompatible approaches. As a convinced
theoretical and methodological pluralist I see the present study as a
practical example of how combining approaches may create new and
deeper insights. Of course this is only a pilot study. As indicated, it would
be necessary to widen the textual basis in order to achieve insights into the
full complexity of the factors involved in the evolution and differentiation
of the concept of Corporate Criminal Liability. I hope, however, that
readers will be inspired already by this methodologically oriented pilot
study to proceed along a similar path as the one suggested here. In this
way, we will be able to keep on enlarging the multidisciplinary basis of
work in the fields of Legal Linguistics and Knowledge Communication
and achieve practically relevant results.

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 PART II:

IDENTITY, DIVERSITY, EQUALITY

AND JUSTICE IN LEGAL DISCOURSE
 CHAPTER THREE

FREEDOM FROM FEAR AND WANT:1

COMMUNICATING LANGUAGE RIGHTS

TARJA SALMI-TOLONEN

Introduction
We no longer live in a vertical but a horizontal flat world as Friedman
(1999) puts it. We no longer live within the confines of our own society
where our fundamental rights are protected by our national legislation. We
live in a world of rules where our lives are regulated not only by the
national legislators but also by supranational (e.g. the EU treaties,
conventions and directives) and intergovernmental institutions (e.g. the
UN intergovernmental agreements) which play an important role in setting
standards for our rights and duties. They provide the normative framework
for developing principles of democratic governance and policies. In any
modern democracy and constitutional state basic rights including access to
justice and fair trial, are of utmost importance. For these rights to have any
real meaning, the language rights are essential to ensuring that a number of
legal principles - including the principles of fair trial - are fulfilled in a
justice system. The right to language and linguistic rights are among the
fundamental rights of any human being although these rights as such have
not been included in legally binding instruments. This chapter examines
questions of fair trial from the point of view of the defendants’
fundamental rights, in particular the right to language and the defendant’s
right to translation and interpretation in court proceedings. The focus is on
how these rights are communicated in transnational, supranational and
national legal instruments.

1
International Covenant on Civil and Political Rights, Adopted by the General
Assembly of the United Nations on 19 December 1966.
https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-
14668-English.pdf (Accessed on May 2015)
 Freedom from Fear and Want: Communicating Language Rights 59

Fair trial is guaranteed under Article 14 of the International Covenant

on Civil and Political Rights (ICCPR), which provides that “everyone
shall be entitled to a fair and public hearing by a competent, independent
and impartial tribunal established by law”.2 The fair trial principle
applicable to both the determination of an individual’s rights and duties in
a suit at law entails a variety of complex issues which are constantly
evolving. This study addresses in particular the strategies of communicating
the right to language and language assistance, and pertains to language
rights in the judicial system and how three transnational, international and
supranational instruments communicate language rights in the judicial
system.
At the outset, it must be emphasised that the principles of fair trial can
hardly be met, if the defendants cannot understand the language of the
courts where their cases are tried. This is one of the thoughts, catalysts and
motives for the current study and the choice of instruments analysed. In
this chapter, the strategies legislators employ in order to communicate the
legislative, the executive and the judicial functions in the International
Covenant on Civil and Political Rights, the European Convention of
Human Rights, the new European Directive on the Rights to Interpretation
and Translation in Criminal Proceedings (2010/64/EU) and at the national
level in the Finnish Language Act are in focus. By analysing both the
explicit expressions and implicit features of the legislator’s abstract
language and the executor’s specific language concerning the concepts of
language rights and right to language, this study attempts to illustrate and
explain how these pieces of legislation propose to close the gap between
individual actors, different cultures and jurisdictions in multilingual
proceedings, thus improving the quality of trials. The principles expressed
in European legislation and legal practice will be compared to those at the
transnational and international and national levels.

Key notions
Equality of arms is defined as one of the elements of the broader
concept of fair trial, which requires each party to be given a reasonable
opportunity to present their case under conditions that do not place them at
a substantial disadvantage vis-à-vis their opponents. That right means, in
principle, the opportunity for the parties to a trial to have knowledge of,

2
International Covenant on Civil and Political Rights, UN General Assembly
resolution 2200A (XXI), December 16, 1966, entered into force March 23, 1976
[hereinafter ICCPR].
60 Chapter Three

and comment on, all evidence adduced or observations filed, with a view
to influencing the court’s decision.3 To be able to exercise these rights the
parties need to be able to understand and be understood in the language of
the court or trial proceedings. If there is no common language, assistance
should be provided. Fig. 3-1 illustrates the relationship between human
rights, access to justice, fair trial, equality of arms and right to language.

Figure 3-1 Key concepts

The right to fair trial is an essential right in all countries respecting the
rule of law. There is no binding international law that defines what is or is
not a fair trial and procedures vary from nation to nation. But again, it
should be self-evident that where there is a language barrier and no
assistance is provided, the criteria for fair trial are not met. Furthermore,
access to justice - another essential component of fundamental rights and
principles - can be inhibited because of language barriers.

Questions and aims

To specify the aims of this chapter at the level of linguistic analysis
further, I propose the following research questions: How are the principles

3
<http://regulatorylaw.co.uk/Disclosure:_Equality_of_arms.html> (Accessed in
October 2014).
 Freedom from Fear and Want: Communicating Language Rights 61

of fair trial, equality of arms and language rights expressed in regulative

texts? Do law-makers use metalinguistic means to communicate their
purpose to the law-takers? What is the role of metadiscourse in regulative
texts which are generally considered impersonal and decontextualised? In
addition, one aim is to discover whether there is variation between
international, supranational and national legislative discourse in these
respects. To gain insight into the metadiscursive practices, a comparative
lens will also be applied to national and international instruments that aim
at ensuring similar rights. The investigation will hopefully lead to a wider
understanding of how the legislators secure access to justice and whether
the current means are understandable and effective.

Data
Fig. 3-2 illustrates the world of rules and instruments, both public and
private. This study draws its data from public regulation because it
addresses fundamental rights and rights pertaining to public courts.

Figure 3-2 The world of rules

62 Chapter Three

The texts studied in order to answer the research questions are:

1. Decree on the Assertion of the International Covenant on Civil

and Political Rights (ICCPR) and its Supplementary Protocol
2. European Convention on Human Rights (ECHR)
3. European Directive on the Rights to Interpretation and Translation
in Criminal Proceedings (2010/64/EU)
4. Finnish Language Act (423/2003)

The Universal Declaration on Human Rights adopted by the United

Nations General Assembly signed in 1948 is the backdrop and reminder of
the goals of international human rights in a modern sense and has
repercussions on all texts studied here. As a result, these texts are closely
linked and there are intertextual ties between the texts not only implicitly
on the level of principles but also explicitly at the text level. Most
obviously, as Garre (1999: 83) puts it “Human rights conventions are
constructed around a skeleton of formulaic expressions”. These expressions
create a link and a network between the different conventions.
The Decree on the Assertion of the International Covenant on Civil
and Political Rights (hereinafter ICCPR) and its Supplementary Protocol
was adopted by the United Nations General Assembly in Resolution
2200A (XXI) on 16 December 1966 and entered into force 23 March
1976. It guarantees under Article 14 a fair and public hearing by a
competent, independent and impartial tribunal established by law. The
Lawyers’ Committee on Human Rights emphasises that the fundamental
importance of this right is illustrated not only by the extensive body of
interpretation it has generated but, most recently, by a proposal to include
it in the non-derogable rights provided for in Article 4(2).4
The second text is the Convention for the Protection of Human Rights
and Fundamental Freedoms (European Convention on Human Rights or
the ECHR). It was drafted by the Council of Europe and signed in Rome
in 1950. The text discussed here is the amended version which came into
force on 1 June 2010. The total number of ratifications was 47 in October
2014. The membership of this Convention is one of the conditions
required of the states applying membership in the European Union.
The third text, European Directive on the Rights to Interpretation and
Translation in Criminal Proceedings (2010/64/EU hereinafter EUD), is a
directive which marks the first step in a programme designed to increase

4
https://www.humanrightsfirst.org/wpcontent/uploads/pdf/fair_trial.pdf (Accessed
in October 2014).
 Freedom from Fear and Want: Communicating Language Rights 63

mutual trust between the European Union Member States in relation to

their criminal justice systems. The purpose is to protect fundamental rights
in the EU and to facilitate the operation of mutual recognition between
judicial authorities in the EU. The Directive expresses this explicitly:

Ex. 1-1. Although the Member States are party to the ECHR, experience
has shown that that alone does not always provide a sufficient degree of
trust in the criminal justice systems of other Member States. (EUD)

The fourth text serves as an example of the national level – Finland,

which is a member of the EU and which has two national languages. The
Finnish Language Act (hereinafter FLA) is a piece of legislation which
naturally differs from the other texts, first of all because it is a translation
and not an authentic legislative text bearing the authority of the law, and
because it addresses only the language rights in Finland and concerns only
the use of Finnish national languages. The other fundamental rights
including language rights are included in the Finnish Constitution and
provided in a number of other legislative instruments, such as Criminal
Investigations Act, Aliens Act and ten other acts. All intergovernmental
treaties and conventions ratified are also included in the Finnish Statute
Book therefore they also constitute the norms that regulate the rights
within Finnish jurisdiction. Because of the provisions concerning language
rights being scattered into so many different texts, it was considered that
one national level act can at least reveal some tendencies of how the
national legislator expresses rights in the domestic statute book and allows
comparison between the international, supranational and national levels.
Of the sample texts one ICCPR and two ECHR (see above) are
relevant to international human rights law and the protection of human
rights in general and are therefore wider in scope. Texts three EUD and
four FLA focus specifically on language rights.

Method
Metadiscourse is a pragmatic construct which allows us to see how
writers seek to influence readers’ understandings of both the text and their
attitude towards its content and the audience (see Hyland 1998: 437). It is
generally thought that legislative prose by definition excludes any such
characteristics because its binding force as a speech act is related to its
infrastructure – the correct body of legislators and procedures of
enactment. It has already been shown (Salmi-Tolonen 2014: 61-86) that at
least the particular European Union directive, which is selected as part of
the data, does have clear interpersonal markers and reveal the writer’s
64 Chapter Three

intention and the persuasive means used to engage the readers - be they
states or citizens. This study, however, casts more widely to the world of
rules and how the law-makers at various levels organize their texts, how
they engage their readers and how they persuade the receivers of the text.
Law is after all essentially a communicative system (see Salmi-Tolonen
2008: 45).
It is possible to detect characteristics unique to the way language is
used in law. Bowers (1989: 3) points out that legislative expression forms
a part of a cycle of communication which, unlike most other kinds of
written discourse, is “complete and explicit”, by which he refers to
“intention-to-expression-to-interpretation”. In order to highlight the
extraordinariness of legal discourse, the chain is complemented here where
legal discourse is seen as interaction between legal language and its social
context. Fig. 3-3 describes the legislative cycle of communication.

Figure 3-3 The cycle of communication in legislative expression (Salmi-

Tolonen 2008: 46)
 Freedom from Fear and Want: Communicating Language Rights 65

It has been argued that meanings are societal or communal and that
therefore the text-external context and the real-world consequences should
be explicitly expressed for the legislative chain to be complete. Therefore,
it is necessary to append to Bowers’s societal/communal “intention-to-
expression-to-interpretation” -to-application-to-legal effect-to-real-world
consequences. Furthermore, this chain is only possible if the three
prerequisite conditions of validity namely – rationality implications,
institutionality, and recursivity – are fulfilled (Salmi-Tolonen 2008: 45).
Fig. 3-3 represents the legislative discourse as a cycle, as it is recursive
and autopoietic5, with every completed cycle generating the forthcoming
cycles shown by the curved arrow. The arrows to and from the real world
show the constant interaction and influences between the cycle and the
real world. The figure also indicates that language is a real-world
phenomenon and constitutes institutional phenomena and effects
legislative expression (see Salmi-Tolonen 2008: 45-46). Considering the
focus of this study also language rights, once they are expressed in a
binding instrument, continue developing and every application and every
decision in legal practice modifies the meaning of those rights either
enhancing them or narrowing them. Those decisions then have
consequences in real life and influence the law-makers’ intentions. The
cycle continues changing its route with every interpretation event in a
spiral-like pattern. This is one of the reasons of studying the law-makers’
expressions also within the metalinguistic framework.
The concept of metadiscourse is based on a view of writing as social
engagement (Hyland 2005: ix). It is generally recognized that written texts
not only concern people, places and activities in the world, but also
acknowledge, construct and negotiate social relations. Metadiscourse
refers to aspects of text which explicitly organize the discourse, in other
words discourse about discourse, engage the audience and signal the
writer’s attitude (Hyland 1998: 437). The concept itself has properties
shared with Biber’s stance (2006), Martin and White’s appraisal (2005),
Hunston and Thompson’s evaluation (2001) and even Salmi-Tolonen’s
(1993) author’s comment.
Metadiscourse and its explicit markers have often been studied in
everyday conversation, academic discourse, and political talks whose
purpose is to persuade or which we recognize as expressive. It is less
common to consider metadiscursive markers in legislative texts whose
coerciveness and effect lie basically on the correct infrastructure and
institutional authority. Perhaps it is the consequence of this slant that

5
For this concept see generally Luhmann 1987.
66 Chapter Three

legislative prose is generally thought to be decontextualized and

impersonal. However Breeze, Gotti and Sancho Guinda (2014) edited a
volume entitled Interpersonality in Legal Genres where one dimension of
metadiscourse – interpersonality – is discussed in a number of law-related
genres. In the same volume, Bhatia (2014: 163) points out that “when one
considers the context in which it [law] is designed and created, and
ultimately used and interpreted, there seems to be an intricate web of
interpersonal forces and tensions that tend to give it a highly complex
interpersonality rarely seen in any other professional genre”. This seems to
wrap up what was said above about the legislative cycle.
It has been pointed out that all speech and writing, and also therefore
legislative writing, include expressions which refer to the text producer,
the implied receiver and the evolving of text itself. These expressions
provide information about the participants, the kind of discourse that is
being constructed, and the context (Hyland 2005: 14). Consequently, the
concept of metadiscourse offers a framework for understanding
communication as social engagement (Hyland: 2005: 4). In this paper, the
framework is used to discover how the EU, UN, EC and national
legislators negotiate the principles of fair trial and how the interpersonal
meaning is manifested.

Analysis
Metadiscourse is “the means by which propositional content is made
coherent, intelligible and persuasive” (Hyland 2005: 39). There is some
variation in the ways the term metadiscourse is used either defined as
those aspects of the text which explicitly refer to the organisation of the
discourse or the writer’s stance towards either its content or the reader or
is more narrowly confined to the elements of textual organisation (more in
detail in Hyland 1998: 438). In this study the term is used in the wider
sense referring to both the means of text organisation but also expressing
the writer’s, the law-giver’s, stance towards the propositional content and
the readers i.e. the law-takers.
According to Hyland (2005), the two types of metadiscourse –
interactive and interactional – have two main purposes: the first organises
the information in a way that the audience is likely to find coherent and
convincing, and the second acknowledges the need to adequately meet the
readers’ expectations of inclusion and solidarity. Interactive resources are
used to organise propositional information in a way that the intended
audience, the law-takers, will find coherent and convincing. Interactional
resources, again, refer to features which involve readers and invite them to
 Freedom from Fear and Want: Communicating Language Rights 67

contribute to the discourse by making them aware of the writer’s attitudes

towards the propositional content and towards the readers themselves
(Hyland 2005).
Interpersonal metafunction refers to the ways in which the writers
project themselves and their audience in the discourse: in other words, it
plays a role in setting up and maintaining social relations, and indicates the
roles of the participants in communication (Halliday 2004/1994).
Language is always used for some specific purpose: to influence the
recipients’ attitudes and behaviour, to provide information in order to
persuade them to take some action or abstain from other actions.
Consequently, how language is used is also a factor determining the
success of communication between the law-makers and the law-takers.
What then are the linguistic means to accomplish this? Halliday
(2004/1994) points out that interpersonal meaning can be expressed by
mood, modality and key. Later he specifies the pronoun system, attitudinal
modifiers and rhythmic features of words. It is apparent that in different
genres a different selection of these means are used (Salmi-Tolonen 2014:
70). The following analysis is an attempt to clarify which ones are used in
the regulative genre.

Size of the samples

Tab. 3-1 shows the size of the data and individual documents
calculated by WordSmith Tools 6.0 (Scott 1999).

DOCUMENT WORDS TOKENS TYPES TTR

ICCPR 42,783 6,914 1,106 16.86
ECHR 35,092 5,606 945 16.23
EUD 26,075 3,909 705 1.04
FLA 28,869 4,396 617 14.04
TOT 132,819 20,725 1,993 9.62

Table 3-1 Size of samples and vocabulary

This very basic count and the type-token ratio (TTR) in column five
show that the vocabulary of none of the texts is overly varied which is to
be expected. The Directive has slightly more variation than that of the
other texts. This corresponds to my earlier findings concerning the
comparison of the EC and UK national legislative texts (see Salmi-
Tolonen 2008). In this data, the international treaties are very similar
concerning lexical variation but the national piece of legislation shows
68 Chapter Three

lower variation than the other three. This may, of course, be a consequence
of the fact that this text is a translation. The type token ratio when all the
texts are calculated together is very low 9.62 and can be seen to indicate
low lexical variation but also the tendency of repetition or reiteration in
legislative writing. It is considered more precise to repeat words and legal
terms in a running text rather than rely on pronouns and other means of
anaphoric or cataphoric referencing which could inadvertently add
vagueness to the text. Although the vocabulary in all four texts is very
similar the EU directive however introduces a concept and term which is
unique to EU namely “mutual recognition”. The expression is borrowed
from EU internal market texts. It was first introduced as an economic
concept meaning that if an item is suitable for sale in one Member State,
then all Member States should accept it for sale without further question
(see Morgan 2011/2012). The term has thus an EU internal reference and
connects the directive explicitly to the body of EU regulation.
Article 1 of the EUD exemplifies how the writers’ attitudes are
expressed and how the readers are invited to contribute. The beginning of
the Article evokes the objectives of the Union:

Ex. 1-2. […] maintaining and developing an area of freedom, security and
justice. (EUD)

Freedom, security and justice are concepts no one would like to deny
or be excluded from furthering. Thus, this is an appeal to the readers’
solidarity, making them participants in the communicative situation. In
this way the second purpose mentioned by Hyland (2005: 54) is also
fulfilled: “rhetorically positioning the audience, pulling readers into the
discourse”. Example 1-2 above, also contains a frame marker used to
sequence the text, in Hyland’s terms (2005: 51), by announcing a
discourse goal and providing framing information about the discourse
elements that follow.
In this respect the ICCPR and ECHR strategies are very similar:

Ex. 1-3. Considering that, in accordance with the principles proclaimed in

the Charter of the United Nations, recognition of the inherent dignity and
of the equal and inalienable rights of all members of the human family is
the foundation of freedom, justice and peace in the world,
Recognizing that these rights derive from the inherent dignity of the human
person,
Recognizing that, in accordance with the Universal Declaration of Human
Rights, the ideal of free human beings enjoying civil and political freedom
and freedom from fear and want can only be achieved if conditions are
 Freedom from Fear and Want: Communicating Language Rights 69

created whereby everyone may enjoy his civil and political rights, as well
as his economic, social and cultural rights,
Considering the obligation of States under the Charter of the United
Nations to promote universal respect for, and observance of, human rights
and freedoms,
Realizing that the individual, having duties to other individuals and to the
community to which he belongs, is under a responsibility to strive for the
promotion and observance of the rights recognized in the present
Covenant, (ICCPR)

While establishing the purpose of the Covenant, ICCPR, introduces

the values motivating it. These values are such that no doubt everyone
finds easy to relate to and become engaged in the communicative act of
the covenant: inherent dignity and inalienable rights; freedom, justice
and peace in the world. Not many would publicly be against the
promotion of such causes.

Ex. 1-4. Considering the Universal Declaration of Human Rights

proclaimed by the General Assembly of the United Nations on 10th
December 1948; Considering that this Declaration aims at securing the
universal and effective recognition and observance of the Rights therein
declared; Considering that the aim of the Council of Europe is the
achievement of greater unity between its members and that one of the
methods by which that aim is to be pursued is the maintenance and further
realisation of human rights and fundamental freedoms; Reaffirming their
profound belief in those fundamental freedoms which are the foundation of
justice and peace in the world and are best maintained on the one hand by
an effective political democracy and on the other by a common
understanding and observance of the human rights upon which they
depend; Being resolved, as the governments of European countries which
are like-minded and have a common heritage of political traditions, ideals,
freedom and the rule of law, to take the first steps for the collective
enforcement of certain of the rights stated in the Universal Declaration,
(ICCPR)

The strategy in this text extract is very similar to that used in the
Covenant and the text also explicitly refers to it. This is not surprising
because they were both drafted soon after the world wars in the period of
the cold war and therefore the importance of world peace is explicitly
mentioned. The texts are paragon examples of their historical context.

Ex. 1-5. The High Contracting Parties shall secure to everyone within their
jurisdiction the rights and freedoms defined in Section I of this
Convention. (ECHR)
70 Chapter Three

Interestingly, the European convention on human rights chooses to

impose the duty to secure using the mandatory shall to all the signatories.
Whereas the choice in the other texts is to use present tense thus declaring
that all the signatories will act as declared in the convention, which makes
the impression of a promise.

Ex. 1-6. Each State Party to the present Covenant undertakes to respect and
to ensure … (ICCPR)

Ex. 1-7. The Union has set itself the objective of maintaining an area of
freedom security and justice. (EUD)

Ex. 1-8. This Directive lays down the rules concerning the right to
interpretation and translation in criminal proceedings and … (EUD)

The national act similarly expresses the purposes and the values
behind the act by referring to the constitution of a sovereign state as in
Example 1-9 below.

Ex. 1-9. The purpose of this Act is to ensure the constitutional right of
every person to use his or her own language, either Finnish or Swedish,
before courts and other authorities.
(2) The goal is to ensure the right of everyone to a fair trial and good
administration irrespective of language and to secure the linguistic rights
of an individual person without him or her needing specifically to refer to
these rights. (FLA)

Interactive properties
Tab. 3-2 below gives examples of the interactive properties in the data. The
categorisation and definitions are Hyland’s and are borrowed from his
interpersonal model of metadiscourse.

CATEGORY FUNCTION RESOURCES F

Transition express relations but, and 11
markers between main clauses 495
x addition
x comparison
x consequence
Frame markers refer to discourse acts for the purpose(s) 15
Endophoric refer to information in without prejudice, 10
markers other parts of the text acting in accordance
 Freedom from Fear and Want: Communicating Language Rights 71

Evidentials refer to information Declaration of HR, 18;

from other texts ECHR, the Charter of the 7;
UN, Article 47, Article 11;
82(2), 1; 1
the Roadmap
Code glosses elaborate propositional such as, namely, inter 10; 1
meanings alia

Table 3-2 Interactive resources (modified from Hyland 2005: 49)

In the current data, conjunction and occurs very often (495 times) as a
transition marker in formulaic phrases that are typical of this genre: equal
and alienable rights, recognition and observance, freedom from fear and
want, justice and peace, common understanding and observance of the
human rights, courts and other authorities, maintaining and developing, to
respect and to ensure. As can be seen, some of these add to the
information and some can be classified as binomials typical of legislative
texts. In addition, of course, and connects coordinated clauses and adds
information.

ICCPR ECHR EUD FLA

AND 116 113 116 150 N
0.36 0.31 0.22 0.19 ptw

Table 3-3 Distribution of transitional marker AND

Although the absolute figures do not tell much because the conjunction
and is generally among the top five of the most frequent words in English
language texts, the relative figures reveal some differences between the
text strategies. The ICCPR and ECHR show higher frequencies than the
EUD and FLA. This is one indication that the two international
conventions contain more formulaic expressions and binomials, such as
those given in the list above, than the other two.
Of the transitional markers but is perhaps more versatile although
much less frequent. It can indicate an additional aim of the law-giver as in
the following example from the EUD.

Ex. 1-10. The introduction to the programme states that mutual recognition
is ‘designed to strengthen cooperation between Member States but also to
enhance the protection of individual rights’. (EUD)
72 Chapter Three

But can also serve not only the purpose of connecting the clauses but
also functioning as an emphasis evoking the purpose and extent of e.g. the
Directive in the readers’ or law-takers’ minds:

Ex. 1-11. Mutual recognition of decisions in criminal matters can operate

effectively only in a spirit of trust in which not only judicial authorities but
all actors in the criminal process consider decisions of the judicial
authorities of other Member States as equivalent to their own, implying not
only trust in the adequacy of other Member States’ rules, but also trust that
those rules are correctly applied. (EUD)

ICPPR ECHR EUD FLA

BUT 5 1 3 2 N
0.11 0.02 0.11 0.06 ptw

Table 3-4 Occurrence of BUT

But also draws attention to its function as a transitional marker. The

rather low frequency of but in all the texts is interesting as such and a
closer look reveals that but occurs more often than not in a correlative
construction not only … but ; in other words, coordinating and adding
information.6 The two parts are parallel to each other as in the example
above not only trust […] but also trust (Ex. 1-11). This construction is
very emphatic and seems to contain an element of surprise to the second
half. In these legislative texts, the correlative conjunction also functions as
a persuasive interpersonal marker soliciting the reader’s sympathy and
solidarity.

Ex. 1-12. The report deals not only with Finnish and Swedish but also with
at least Saami, Romani and sign language. (FLA)

Example 1-13 below also demonstrates a typical use of but contradicting a

negative construction.

Ex. 1-13. It shall not be the general rule that persons awaiting trial shall be
detained in custody, but release may be subject to guarantees to appear for
trial, at any other stage of the judicial proceedings, and, should occasion
arise, for execution of the judgement. (ICCPR)

6
For comparison e.g. the 450-million-word Corpus of Contemporary American
English renders a frequency 3.92 occurrence of but per thousand words, and in the
frequency list, it is number 23. <http://www.wordfrequency.info/free.asp?s=y>.
(Accessed in October 2014).
 Freedom from Fear and Want: Communicating Language Rights 73

The references to other parts of the text or other legislative texts are
commonly done through phrases that are typical of legislative texts, such
as for the purposes of or without prejudice to. In this respect, the Directive
and legislative texts in general deviate from other types of texts and can be
considered to contain genre-specific markers. Although expressions like
the ones above are formal, they also meet the readers’ expectations of a
legislative text:

Ex. 1-14. For the purposes of the preparation of the defence,

communication between suspected or accused persons and their legal
counsel in direct connection with any questioning or hearing during the
proceedings, or with the lodging of an appeal or other procedural
applications, such as an application for bail, should be interpreted where
necessary in order to safeguard the fairness of the proceedings. (EUD)

Ex. 1-15. For the purpose of this article the term "forced or compulsory
labour" shall not include: (ECHR)

Example 1-14 also contains a code gloss designed to elaborate the

propositional meaning. Such as is an expression which can cause
misunderstandings because punctuation or the lack of punctuation before it
renders different meanings, namely whether such as is followed by an
example or whether the provision or prescription concerns that explicit
item. The IICPR and the ECHR have taken a different punctuation strategy
even if the texts are otherwise almost identical.

Ex. 1-16. The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground such as
sex, race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status. (ECHR)

Ex. 1-17. Each State Party to the present Covenant undertakes to respect
and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status. (ICCPR)

If there is no punctuation error omitting the comma, then the ECHR

gives only examples of reasons although adding the all-inclusive phrase or
other status. The ICCPR expresses the same in Article 14 by a non-
restrictive clause adding a comma before such. However, it must be noted
74 Chapter Three

that the same covenant repeats the same list in Article 26 without the
comma. The EUD renders 3 occurrences of such as of which two have a
comma, in other words listing examples and one without a comma, thus
indicating that the list is explicit example X below.

Ex. 1-18. Certain documents should always be considered essential for that
purpose and should therefore be translated, such as any decision depriving
a person of his liberty, any charge or indictment, and any judgment. (EUD)

Ex. 1-19. Where appropriate, communication technology such as

videoconferencing, telephone or the Internet may be used, unless the
physical presence of the interpreter is required in order to safeguard the
fairness of the proceedings. (EUD)

Another type of usage can be found in the examples 1-20 and 1-21 below:

Ex. 1-20. The exercise of the rights provided for in paragraph 2 of this
article carries with it special duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only be such as are provided
by law and are necessary: (ICCPR)

Ex. 1-21. There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others. (ECHR)

The Finnish national act the FLA contains neither the frame marker for
the purpose(s) or the code gloss such as. The explanation for this is
probably that even if the Act is translated into English for the
informational purposes only, English legislative style is not used instead
the translation is fairly faithful to the Finnish text. For the purpose is not a
phrase that has a clear formal equivalence in Finnish legislative texts. The
word purpose occurs only in the phrase “the purpose of this Act is”.
Namely is another code gloss used in the EU Directive but in none of
the other texts. It reminds the readers of the objective expressed earlier in
the text:

Ex. 1-22. Since the objective of this Directive, namely establishing

common minimum rules, cannot be sufficiently achieved by the Member
States and can therefore, by reason of its scale and effects, be better
achieved at Union level, the Union may adopt measures in accordance with
the principle of subsidiarity as set out in Article 5 of the Treaty on
 Freedom from Fear and Want: Communicating Language Rights 75

European Union. In accordance with the principle of proportionality, as set

out in that Article, this Directive does not go beyond what is necessary in
order to achieve that objective. (EUD)

The occurrences of interactive markers are not statistically significant

but sometimes even low occurrences are meaningful and worth noting
from a genre-specific point of view. What is noteworthy is that in all the
categories used in this legislative text we find markers which are typical of
any text not only of legislative texts. The difference is that only a limited
selection is used and in some cases they are markers which are entirely
genre-specific.

Interactional devices
Table 3-5 displays the interactional devices used by the law-maker.
Again the framework is borrowed from Hyland’s (2005) interpersonal
model of metadiscourse, although writer and reader are replaced by law-
maker(s) and law-taker(s). These expressions have been used throughout
this chapter because the reference to writer and reader or recipient
becomes a substitute for those terms.

CATEGORY FUNCTION NOUN E.G. VERB E.G. ADVERB/

ADJECTIVE
E.G.
Hedges law-maker’s without delay might be free;
comment adequate
Boosters emphasize cornerstone; safeguard; necessary;
the fairness; ensure; essential;
objective right; enhance individual
liberty
Attitude law-maker’s in a spirit of facilitate; efficient;
markers attitude trust; compromise effectively;
approximation effective;
more
consistent;
potentially
weak
References explicit the Union;
to self reference to the Council
the law-
maker
76 Chapter Three

Engagement explicitly protection; welcome mutual;

markers build fair trial individual
relationship rights
with the
law-taker

Table 3-5 Interactional resources (framework modified from Hyland

2005: 49)

The categories suggested by Hyland (2005) are those that in some

studies – for instance, Salmi-Tolonen (1993) – have been referred to as
‘markers of epistemic modality’, the purpose of which is to modify the
writer’s attitude to the propositional content. In this data, these expressions
and utterances are used to convince the law-takers of the law-maker’s
good intentions and the good cause and draw them into the discourse and
make them participants in furthering this cause.
One cannot help noticing the very positive rhetoric the law-maker has
opted for in all categories. The ICCPR and the ECHR have a more severe
tone which reflects the historical context when they were drafted. If we
consider the following example from the ECHR and the second paragraph
of Article 7, we can clearly see it referring to the war crimes that had been
recently witnessed in Europe. Although Article 7 is otherwise in
accordance with the principle of nulla poena sine lege (no penalty without
law) and nullum crimen, nulla poena sine praevia lege poenali (law cannot
be enacted retroactively), the second paragraph seems to be against it and
can only be explained by reference to the trials after World War II.7

Ex. 1-23. No one shall be held guilty of any criminal offence on account of
any act or omission which did not constitute a criminal offence under
national or international law at the time when it was committed. Nor shall a
heavier penalty be imposed than the one that was applicable at the time the
criminal offence was committed.
This article shall not prejudice the trial and punishment of any person for
any act or omission which, at the time when it was committed, was
criminal according the general principles of law recognized by civilized
nations. (ECHR)

Particularly in the EUD, much attention is paid to individual rights,

guaranteeing the right of defence and respecting those rights. Thus the

7
See e.g. http://www.proverbia-iuris.de/nulla-poena-sine-lege-certa/ (Accessed in
October 2014).
 Freedom from Fear and Want: Communicating Language Rights 77

rhetoric used is one which addresses individuals as well as public bodies.

In this text one detects a certain strategy and tool that are also intended for
use in domestic politics, bearing in mind that the implementation of the
Directive will mean an increase in the budgets of the judiciaries of the
Member States, which, in many cases, are already suffering from severe
cuts.
Example 1-25 contains the expression without delay, which is placed
in the category of hedges. It is one of the vague expressions often found in
legislative texts. An exact time-line would cause further problems (see
generally Endicott 2000). The interpretation of delay will be defined by
judicial practice and is thus left to the courts of the Member States to
decide:

Ex. 1-25. Interpretation for the benefit of the suspected or accused persons
should be provided without delay. However, where a certain period of time
elapses before interpretation is provided, that should not constitute an
infringement of the requirement that interpretation be provided without
delay, as long as that period of time is reasonable in the circumstances.
(EUD)

The ICCPR uses boosters such as can be seen in Example 1-26 in full
equality and promptly and in detail to highlight the importance of the right
to be informed in a language that the suspected person can understand of
the reasons for the detention and to get free assistance, if interpretation is
needed.

Ex. 1-26. In the determination of any criminal charge against him,

everyone shall be entitled to the following minimum guarantees, in full
equality: (a) To be informed promptly and in detail in a language which he
understands of the nature and cause of the charge against him; […] (f) To
have the free assistance of an interpreter if he cannot understand or speak
the language used in court (ICCPR)

The wording of these rights is identical in the ECHR, Articles 6 and 7.

A good example of the willingness to give a certain amount of “wiggle
room” to the addressed national authorities of the signatory states can be
found in example 1-27. The legislator acknowledges the fact that there are
varying practices among the Member States in certain legal areas. The use
of the modals may and might demonstrates this.

Ex. 1-27. In some Member States an authority other than a court having
jurisdiction in criminal matters has competence for imposing sanctions in
relation to relatively minor offences. That may be the case, for example, in
78 Chapter Three

relation to traffic offences which are committed on a large scale and which
might be established following a traffic control. In such situations, it would
be unreasonable to require that the competent authority ensure all the rights
under this Directive. (EUD)

Free and adequate is an expression which conveys the law-makers’

attitude and are supposed to ensure a minimum standard. Again, the final
definition will depend on future case law, and the text gives the member
states discretionary powers, thus making them party to the success of the
law-makers’ intentions:

Ex. 1-28. This Directive should ensure that there is free and adequate
linguistic assistance, allowing suspected or accused persons who do not
speak or understand the language of the criminal proceedings fully to
exercise their right of defence and safeguarding the fairness of the
proceedings. (EUD)

Example 1-26 above shows the ICCP’s and the ECHR’s way to
express the same which is more direct, namely free interpretation.
Linguistic assistance seems to entail a wider meaning than interpretation.
But if one takes into consideration the time gap between the drafting of the
directive and the two international instruments, one has to assume that the
meaning is the same since an earlier interpretation as well as translation
could also be understood in a more general sense referring to transposition
from one language to another, oral or written. Today, when we know more
about these mechanisms, we use interpretation and translation in a more
specific meaning and, if we want to refer to them both, we need a more
generic expression.
The EUD contains some expressions unique to it, thus also
demonstrating strong intertextual elements with other EU specific
legislative texts. Explicit examples of these are the term mutual
recognition and roadmap. The concept of mutual recognition is borrowed
from Europe’s internal market and it draws the law-takers into the
discourse:

Ex. 1-29. […] the principle of mutual recognition of judgments and other
decisions of judicial authorities should become the cornerstone of judicial
cooperation in civil and criminal matters within the Union because
enhanced mutual recognition and the necessary approximation of
legislation would facilitate cooperation between competent authorities and
the judicial protection of individual rights. (Preamble: 1, 2010/64/EU)
 Freedom from Fear and Want: Communicating Language Rights 79

Example 1-30 is the non-regression clause mentioned above. It assures

Member States that they have the right to provide better services to
suspects or accused persons. Thus it explicitly builds up the relationship
between the law-maker and the law-taker:

Ex. 1-30. Nothing in this Directive shall be construed as limiting or

derogating from any of the rights and procedural safeguards that are
ensured under the European Convention for the Protection of Human
Rights and Fundamental Freedoms, the Charter of Fundamental Rights of
the European Union, other relevant provisions of international law or the
law of any Member State which provides a higher level of protection.
(EUD)

In sum, the law-makers have used a number of interpersonal means to

communicate their good purpose to the law-takers and secure the law-
takers’ cooperation in furthering the cause at both the individual and
public levels.

Modality
In Halliday’s terms (Halliday 2004/1994), a regulative text both gives
and demands. It gives information and demands goods or service by
commanding or directing. In other words, it is both descriptive and
prescriptive and also falls into the categories normative, functional, and
institutional. Unlike in other genres, commanding or directing in
regulative texts is most commonly done using the modals shall, should
and may to represent the imperative and the words of authority. Shall
expresses a mandatory rule, imposing a duty to do something, and may is
used to confer discretionary powers. Tab. 3-6 below shows the frequency
with which various modal verbs occur in the data.

MODAL ICCPR ECHR EUD FL Tot

AUXILIARY
SHALL 191 124 30 42 387 N
2.72 2.13 0.73 0.91 %
SHOULD 2 0 35 0 37 N
0.85 %
MAY 40 38 8 13 99 N
0.57 0.65 0.20 0.28 %
MIGHT 0 0 1 0 3
CAN 2 2 3 2 9
80 Chapter Three

WOULD 0 1 2 2 8
WILL 3 2 1 0 6

Table 3-6 Occurrence of modal auxiliary verbs in data

Even a simple count of frequencies shows some differences in the

strategies of the drafters. Since the texts are different in length, absolute
frequencies do not give as clear a view than relative frequencies, and the
frequencies of shall are also presented per 1000 words in each text.

MANDATORY ICCPR ECHR EUD FL Tot

SHALL
SHALL 191 124 30 42 387 N
2.72 2.13 0.73 0.91 %
4.46 3.53 1.15 1.45 ptw

Table 3-7 Occurrence of shall

As we see, the figures indicate that even when computed by a thousand

words the two international human rights conventions contain more
expressions of deontic modality than the other two texts. Even if we
cannot deduce that without examining the text also qualitatively, we can
see some signs of differing strategies between the law-makers. The
“softest” text in this sense is the EU Directive. My previous studies have
also shown that the EU texts are closer also in other respects to ordinary
prose than other specialized texts (see Salmi-Tolonen 2008).
The use of shall in legal texts is often criticised by reformers of legal
language because, in their view, proper drafting uses both the indicative
mood and the imperative mood. Bill-drafting guides explain that the
proper role of the imperative mood is to create a legal duty or to prescribe
a rule of conduct, as in the example above, whereas the imperative mood
should not be used merely to state a legal result.8 All the texts examined
flout this guideline. The use of shall, for example in Article 3, subsection 4
of the EUD below, is a false imperative because the purpose of the
provision is achieved by declaring the very act of the legal result (Salmi-
Tolonen 2008: 158):

8
See e.g. <http://www.le.wa.gov/Legislature/_template> (Accessed in October
2014).
 Freedom from Fear and Want: Communicating Language Rights 81

Ex. 1-32. There shall be no requirement to translate passages of essential

documents which are not relevant for the purposes of enabling suspected or
accused persons to have knowledge of the case against them. (EUD)

Another genre-specific auxiliary in regulative English is the auxiliary

verb may. It is used to confer discretionary powers: a right, privilege or
power. Tab. 3-8 shows a similar pattern in the use of may than in the use
of shall. The two international conventions have higher occurrences of
may than the other two and the EU Directive shows lowest frequencies.

DISCRETIONARY ICCPR ECHR EUD FLA Tot

MAY
MAY 40 38 8 13 99 N
0.57 0.65 0.20 0.28 %
0.93 1.08 0.30 0.45 ptw

Table 3-8 Occurrence of may

In the EUD the discretionary powers are conferred to the Union, the
Member States or their authorities and the defendant as in the examples
below.

Ex. 1-33. the Union may adopt measures in accordance with the principle
of subsidiarity as set out in Article 5 of the Treaty on European Union.
(EUD)

Ex. 1-34. […] an oral translation or oral summary of essential documents

may be provided instead of a written translation on condition that such oral
translation or oral summary does not prejudice the fairness of the
proceedings. (EUD)

Ex. 1-35. […] the imposition of such a sanction may be appealed to such a
court, this Directive shall apply only to the proceedings before that court
following such an appeal. (EUD)

Ex. 1-36. Suspected or accused persons or their legal counsel may submit a
reasoned request to that effect. (EUD)
The National Act confers powers using the auxiliary may to various
authorities or official bodies.

Ex. 1-37. An authority may provide better linguistic services than what is
required in this Act. (FLA)
82 Chapter Three

Ex. 1-38. On the recommendation of the municipal council Government

may determine by a Government Decree that the municipal is bilingual for
the following ten year period even if the municipality would otherwise be
unilingual. (FLA)

Ex. 1-39. However, a unilingual authority may issue its statement in its
own language. In such a case, on the request of the authority, the authority
that deals with the matter issues an official translation of the statement free
of charge. (FLA)

The ECHR confers the discretionary powers or a duty to act to a

contracting party, the court, a single judge, the Grand Chamber or the
Committee of Ministers.

Ex. 1-40. Release may be conditioned by guarantees to appear for trial.

(ECHR)

Ex. 1-41. Judgment shall be pronounced publicly but the press and public
may be excluded from all or part of the trial in the interests of morals […]
(ECHR)

Ex. 1-42. At the request of the plenary Court, the Committee of Ministers
may, by a unanimous decision and for a fixed period, reduce to five the
number of judges of the Chambers. (ECHR)

The ICCPR, again, addresses all peoples or everyone, State Party, the
General assembly, the court.

Ex. 1-44. All peoples may, for their own ends, freely dispose of their
natural wealth and resources without prejudice to any obligations arising
out of international economic co-operation, based upon the principle of
mutual benefit, and international law. In no case may a people be deprived
of its own means of subsistence. (ICCPR)

Ex. 1-45. In time of public emergency which threatens the life of the nation
and the existence of which is officially proclaimed, the States Parties to the
present Covenant may take measures derogating from their obligations
under the present Covenant […] (ICCPR)

Ex. 1-46. In countries which have not abolished the death penalty, sentence
of death may be imposed only for the most serious crimes in accordance
with the law in force at the time of the commission of the crime and not
contrary to the provisions of the present Covenant and to the Convention
on the Prevention and Punishment of the Crime of Genocide. (ICCPR)
 Freedom from Fear and Want: Communicating Language Rights 83

Ex. 1-47. Anyone sentenced to death shall have the right to seek pardon or
commutation of the sentence. Amnesty, pardon or commutation of the
sentence of death may be granted in all cases. (ICCPR)

The use of may, in the two international instruments, reflects the purpose
and nature of them, namely, that they impose certain discretionary powers
to the signatories and the various authorities of the signatory states. They
seldom address those whose rights these instruments protect. None of the
occurrences of may are directly connected with language rights, they are
secured by the deontic shall.

Conclusions
At the beginning I posed three questions I would try to answer in this
chapter. How are the principles of fair trial, equality of arms and language
rights expressed in regulative texts? Do law-makers use metalinguistic
means to communicate their purpose to the law-takers? What is the role of
metadiscourse in regulative texts which are generally considered impersonal
and decontextualised?
The primary function of all the studied texts is prescriptive – imposing
duties and conferring rights – and they can be assigned to the legislative
genre. They direct the legislators of the Signatories, the Member States or
official bodies and authorities to take measures that will implement the
purpose of the legislative instrument and the values and principles of its
background. Generally speaking, one might think that the textual function
would be informative and directive. However, the analysis above shows
that the communicative function is also expository (see e.g. Werlich 1975
on text typology) particularly in the EUD and the international
conventions. In order to achieve the desired end, it is necessary to explain
the motives and background of the directive to the relevant bodies
concerned. There is no doubt that it is crucial for the recipients to get the
information that the regulative body wants to convey by the particular
legislative instrument. If we pursued only this informational approach, we
would ignore the participants in the discourse and their background
understandings and expectations. These interpersonal dimensions
influence how the recipients interpret and respond to the message and act
upon it. Not everything that occurs in directive and informational genres
works only to convey norms. The law-makers want to ensure that the
information concerning the norms is understood and accepted and
consequently acted upon. The recipients, be they legislative bodies of the
Member States or individuals, are drawn in, engaged and motivated to
follow along and participate.
84 Chapter Three

Considering the studied instruments in a context of the world of norms

all but one – the national act FLA – belong to the ‘soft’-law category. This
means that they are more descriptive in the sense that they do not regulate
in detail what must be done, but rather give the authorities the purpose of
the regulation and the end they must achieve, but leave room for the
signatories, in this case, to choose the proper means. Although all the texts
are prescriptive and normative, comparative analysis reveals that there is a
difference in strategies between the texts. The expressions using deontic
shall to impose duties to the signatories makes the ECHR text the most
strongly prescriptive one. The other two international conventions use
softer expressions such as present tense and future mode making the
strategy correspond with the strategy of binding promises rather than
typical directives. In conclusion, one might say that the approach taken to
them is more cooperative that authoritative.
The directive genre is generally tied to conventions and context
perhaps more than any other genre; therefore, the text of a directive is
shaped by its drafters according to the expectations and requirements of
the receivers – the law-takers. International intergovernmental instruments
and EU directives are basically designed with the legislators and
authorities of the signatories in mind, who can be considered to have
developed a shared language, and only secondly thinking of the citizens or
the general public. Therefore, the diversity among the audience is perhaps
not considered to be as great as it would be in the case of Parliamentary
acts, which directly address the citizens and are designed to be used in
different ways. The two intergovernmental conventions are clearly in a
category of their own. What is surprising is that the FLA, a parliamentary
act and therefore not in the same category as far as the frequency of
deontic speech acts is concerned.
Perhaps unexpectedly, the analysis presented above reveals quite an
extensive use of interpersonal and interactive metadiscursive devices. An
earlier study of an international model law (the UNCITRAL Model Law)
reveals that the primary function of the model law is expository rather than
directive, as would be the case with national laws (Salmi-Tolonen 2003).
It seems that, similarly, the drafters of international and supranational
legislative texts need to help their audience by offering explanations and
background and particularly using persuasive devices, so that the audience
can more easily interpret and identify with the values represented in the
instrument. It has been noted by Atiyah (1983: 72) that:

The notion of law having a purpose implies a teleological view of law,

with a purposive mind behind it, but the law itself has no mind. Those who
 Freedom from Fear and Want: Communicating Language Rights 85

make the laws may certainly have purposes which they wish the law to
achieve, and sometimes it is clear enough what those purposes are.

One might deduce that the drafters of the sample texts have clear
purposes and have used metalinguistic means to express them. This seems
to clarify the interpretation of decontextuality and impersonality of
legislative texts. The analyses give a reading to decontextuality and
impersonality as all-inclusivity – concerning both the contexts and the
addressees. The political, social, historical and linguistic contexts can
always be seen in legislative texts, as the analysis and examples above
have demonstrated. In securing the principles of fair trial, these contexts
should not be ignored for individuals to have their cases tried without “fear
and want”.

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 CHAPTER FOUR

LEGAL NECESSITY
OR COMPETITIVE ADVANTAGE:
A CRITICAL ANALYSIS OF WORKPLACE
DIVERSITY INITIATIVES IN HONG KONG

ADITI BHATIA

Introduction
Diversity initiatives have recently received much attention from
academic scholars, NGOs, human resource specialists, training specialists,
corporate management, recruitment experts and minority groups as an
inevitable component of globalisation. They have garnered additional
attention due to the complexities involved in the growth of a mobile,
transient professional workforce that travels with global flows of trade and
industry. This has often resulted in niche markets within which diverse
social and cultural identities require mechanisms to combat discrimination
and encourage fair treatment (Ely and Thomas, 2001). Most of the research
on diversity initiatives has presented a rather narrow understanding of
diversity, defining it in terms of gender, race, age, religion and disability.
However, diversity can be defined more broadly to include “the entire
workforce and not just members of minority groups… [and] multiple
dimensions of group-identity” (Cox, 1994: 57). This is the definition that
the current study employs in its approach to the analysis of the data.
Diversity initiatives are neither a global requirement nor uniformly
instituted around the globe. Hong Kong Exchanges and Clearing (HKEx)
issued “a code provision to promote board diversity [through] amendments
to its Corporate Governance Code” that took effect on 1 September 2013
and “directs all listed companies to report on their diversity policy and
supply considered reasons should they not conform” (Russell, 2013: 15).
This decision illustrates Hong Kong’s eagerness to embrace workplace
 Legal Necessity or Competitive Advantage 89

diversity while acknowledging any possible reluctance from local

corporate organisations. Local diversity initiatives are particularly lagging
behind those of global competitors, as they are not a top concern on the
corporate agenda for most local businesses. However, according to
Mahtani, Vernon and Yik (2012)

a few multinational financial institutions and technology firms are leading

the way in the adoption of diversity best practices, most companies are just
awakening to the significance of global businesses and the need to set
themselves apart from businesses in Mainland China (7).

Similar to corporate social responsibility (Bhatia, 2012; 2013; 2015),

diversity initiatives at the corporate level, in particular around Asia, are
often seen as public relations strategies that have little real effect on actual
workplace practices. However, awareness of the practical importance of
diversity initiatives has recently been increasing in Asian companies.
Mahtani and Vernon (2008: 6) observe the following:

Traditional, often outdated, attitudes prevail in many workplaces in Asia –

be it the view of Asian people as future leaders, women in leadership
positions, young people as having inappropriate work styles or stigma
around people with disabilities. More work needs to be done to break down
these stereotypes. Training is used as a change agent but often fails in
delivery in Asia as its focus and development is often US or Europe
centric. What is needed is a concerted effort for companies to engage
experts from Asia in developing such programmes.

As one of the largest and freest trading economies in the world, Hong
Kong is in a privileged position to champion the institution of effective
diversity initiatives in Asia. Although legislation has been put in place to
prevent discrimination, it is a more basic approach to diversity that
recognises race, gender and disability, rather than an all-encompassing
definition. Hong Kong’s legal system is becoming increasingly supportive
of diversity initiatives in the workplace. There are currently four anti-
discrimination ordinances in place: Sex Discrimination Ordinance;
Disability Discrimination Ordinance; Family Status Discrimination
Ordinance and; Race Discrimination Ordinance.
The Equal Opportunities Commission (EOC), an independent statutory
body that serves to enforce Hong Kong’s equal opportunity legislation
(Mahtani, Vernon and Yik, 2012), puts Hong Kong in a unique position to
lead Asia on diversity initiatives. Hong Kong’s ‘mature’ legal framework,
which includes “some initial equal opportunities legislation and… strong
international influences that demonstrate the benefits that diversity can
90 Chapter Four

bring” (Mahtani, Vernon and Yik, 2012: 34), can allow the SAR to
effectively promote diversity initiatives that are essential to attaining
further economic success. This is crucial for corporate organisations
seeking to (1) maintain market share; (2) decrease company costs; (3)
increase workforce productivity; (4) improve management quality and the
relationship between management and the workforce; (5) attract and retain
an international workforce while suitably grooming a local workforce to
integrate into global corporations and (6) help Hong Kong maintain its
status as an international city and Asia’s status as an economic hub (Kirby
and Harter, 2001).
In response to the emerging importance of workplace diversity and
Hong Kong’s current weaker efforts to embrace diversity initiatives, this
study seeks to investigate exactly how companies talk about ‘diversity’ in
their corporate social responsibility reports, in order to explore the ‘power
of linguistic choices in promoting diversity initiatives’ (Kirby and Harter,
2002: 43), especially at the company level. This study is part of a larger
project that seeks to investigate how diversity is framed in the corporate
communications of the banking industry, by working with specialist
informants and corporate stakeholders, and based on the language used in
corporate informational materials. The project aims to raise awareness
amongst academics and business practitioners to achieve a better
understanding of what makes a diversity initiative effective, how different
corporate organisations consider the concept of diversity and how to
effectively make employees aware of the culture of diversity. It will also
alert concerned persons to the power of linguistic choice (Kirby and
Harter, 2002) when talking about diversity to avoid the creation of labels
that counteract the purpose of diversity initiatives. The findings of this
project are expected to enable the creation of more effective corporate
informational documents on organisational diversity. By exploring how
workforces in different companies are being asked to create a culture of
diversity, the project will aim to show how effective diversity initiatives
can better develop a talent pool, create a more motivational work
environment and make public relations a more effective endeavour.
Indeed, diversity initiatives play a

unique role as dual advocate for an organization and its publics…

[D]iversity moves beyond thinking only about short-term, competitive
gains for the organization to valuing long-term symmetrical relationships
between an organization and its publics built on mutual understanding and
trust.” (Hon and Brunner, 2000: 336).

The project hopes to make an important contribution to the study and

 Legal Necessity or Competitive Advantage 91

practice of corporate communication in general, as it will investigate not

only the different workplace diversity initiatives put forward by
companies, but also how poorly instituted initiatives can affect aspects of
workplace communication (cf. Kirby and Harter, 2002).

Literature Review: General conceptualisations of diversity

The literature has conceptualised diversity with some degree of
overlap, indicating both the ‘integrity’ and ‘intricacy’ of this versatile
concept. One of the more dominant conceptualisations views diversity in
terms of surface and deep levels. Diversity at the surface level refers to the
explicit characteristics of an individual, such as his or her age or gender.
Diversity at the deep level refers to the differences in individuals’ attitudes
and ideologies (Harrison, Price and Bell, 1998), i.e., observable and non-
observable diversity (Milliken and Martins, 1996). Many non-linguistic
studies on diversity have focused on the benefits and weaknesses of
surface-level diversity (particularly race and gender) in organisational
contexts. These benefits and weaknesses have been examined according to
the pressing requirements of legal systems to eliminate prejudice against
members of minority groups, especially in terms of clique creations,
cultural heterogeneity, profit margins and maintaining a competitive edge
(Milliken and Martins 1996; Seyed-Mahmoud, 2004; Bassett-Jones,
2005). Few of these studies have focused on Hong Kong. Chiu and Ng’s
(1999) study finds that women-friendly policies are not prevalent in Hong
Kong companies, despite family-related commitments affecting the work
output of both men and women. Leonard (2010) explores the negotiation
and construction of ‘whiteness’ and ‘Britishness’ and characterises the
concepts as fluid based on the observations of British expatriates working
in Hong Kong.

Diversity from a linguistic perspective

Studies conducted from a more linguistic perspective include that by
Kirby and Harter (2001), who argue that diversity is derived from the
concept of a quality work life. This infers a more managerial approach to
cultivating diversity, with the intended aim of “competitive advantage and
organizational profitability” (122). This is reflected in the metaphor of
“managing diversity” (122), which sets organisations above individuals,
whom it considers material resources. Bell and Hartmann (2007), whose
study is informed by critical theory, further point out that a genuine and
constructive discourse about multiculturalism in the workforce is difficult
92 Chapter Four

to attain without giving due consideration to “white normativity and

systemic inequality” (896). Cox (1994) argues that diversity research must
distinguish between the related concepts of gender, race and equal
opportunity, and that any language used for talking about diversity must
thus communicate that “diversity means the entire workforce and not just
members of minority groups” (57). Wentling and Palma-Rivas (1998),
who use content analysis and conduct extensive, open-ended interviews
with diversity experts, conclude that companies carry out diversity
initiatives to improve productivity and remain competitive, establish better
work relationships among employees, enhance social responsibility and
address legal concerns. They also discover that diversity training on its
own is not likely to have a major effect, but must be built into an overall
framework that addresses team building, quality management and
employee empowerment issues to create a better ‘culture of diversity’.
Drawing more specifically on critical discourse analysis, Tomlindon
and Egan (2002), who focus on a multinational MBA programme, explore
the discourse of ‘valuing diversity’, especially in terms of cultural
difference. They also consider its positive and negative effects on sense
making and relationship building, including group fragmentation and the
establishment of friendships. Zanoni and Janssens (2003) investigate texts
on diversity generated from over two-dozen interviews with Flemmish
human resource managers to discover how they define diversity, and how
this definition influences their managerial practices and thus their
conveyance of power. Perriton (2009) studies unequal gender relationships
in the workplace, focusing particularly on how the corporate discourse of
‘business care’ constrains the discussion of gender in the workplace. As
women are persuaded that complaining is unprofessional, their linguistic
choices are considered to shape their work lives and contribute to unequal
gendered relations.
Although these studies have made an important contribution to the
study of diversity, they have mainly been conducted in non-Asian business
contexts, and have not been derived from a broad definition of diversity
that includes corporates and organisations in Hong Kong. Furthermore,
none of these studies have considered discourse analysis to look at the
language used to frame diversity.

Data Collection
The data for this study draws on a larger project on workplace diversity
in Hong Kong, for which a variety of verbal and written data is being
compiled, ranging from 2012 when consultations on board diversity began
 Legal Necessity or Competitive Advantage 93

prompted by the HKex to the present, almost two years after the adoption
of the new code provision on diversity, in order to cover the issue as
comprehensively as possible. For this particular study, the primary corpus
consists of the corporate social responsibility reports and various other
informational materials collected from two major licensed banks (names
removed to ensure anonymity) to investigate the corporate perspective on
diversity. The banking industry has been chosen since Hong Kong has one
of the “highest concentration of banking institutions in the world”
(HKTDC Research, 7 July 2014), making up 15.9 % of the GDP and is
one of Hong Kong’s key industries (Hong Kong Government Monthly
Digest of Statistics, April 2014). The largest local licensed banks have
been chosen (names have been removed to ensure anonymity) based on
the number of employees (cf. Hong Kong Business, 2013; Hong Kong
Treasury). In addition, a secondary supporting corpus of newspaper and
other media reports from Hong Kong, such as web-based media and social
documents related to workplace diversity, found on a search engine like
Google through key terms including ‘diversity’, ‘corporate diversity’,
‘workplace diversity’, ‘diversity initiatives in Hong Kong’, ‘diversity
practices in Hong Kong banks’ etc. with reliability and trustworthiness of
the data ensured, have been used to ensure a multi-perspective analysis.

Theoretical Framework
The study drew on critical discourse analysis to investigate the
collected data, which includes categorising the data by genre; manually
analysing the primary corpus of data for dominant and/or overlapping
themes, key rhetorical strategies, linguistic features, and other significant
semiotic features (some of these include particular terminologies used to
reference diversity, metaphors, visual design of documents, amount of
content devoted to diversity, images used to emphasize or deemphasize
particular kinds of diversity etc.). Critical discourse analysis (CDA) was
considered a relevant framework since it focuses on the ways in which
socio-political and cultural texts “enact, reproduce, and resist social power
abuse, dominance, and inequality… [assuming] that power is not always
exerted through obviously abusive acts of domination, but rather more
pervasively through hegemony, that is, by securing consent on laws, rules,
norms, and habits that reflect unequal power relations” (Zanoni and
Janssens, 2003: 56). The objects of inquiry for CDA are often common
societal processes that can be made the focus of ‘critical’ inquiry. A
dominant characteristic of CDA is the belief that language is a social
practice (Fairclough, 1989), meaning that discourse both shapes and is
94 Chapter Four

shaped by society. Discursive events share a co-constitutive relationship

with the social, institutional and professional contexts within which they
take place. Although they are socially conditioned by the local and macro
contexts in which they occur, they also shape the social identities and
relationships of the participants engaged in the events. Thus, the ‘discourse’
in CDA refers not to a single piece of text, but rather the social process of
meaning creation. As such, it is the end product of the creation and
interpretation of semiotic variables (Fairclough, 2003). CDA aids in
deciphering the effect of powerful ideologies on discursive practices. It takes
an interest in how discourse is popularised or converted from specialised
knowledge into lay knowledge (Calsamiglia and Van Dijk, 2004), and the
consequences of this sort of re-contextualisation. Further, CDA focuses on
how “discursive practices are cut off from their embeddedness in action and
transformed into discourses which are articulated together in new ways
according to the logic of the recontextualizing practice: and transformed
from real to imaginary, and bought into the space of ideology” (Fairclough,
1999: 70-71). As such, it is considered a useful framework for diffusing to
whatever extent possible the complexity of the power relations within the
socio-cultural and organisational structures that may exist between
administrators, the workforce and management.

Analysis of Data
Diversity as a Legal Necessity
As there is no compulsory adoption of diversity across the board, its
definition, implementation and communication is often determined by the
motivation of practicing corporations. Analysis revealed two dominant
themes in the treatment of diversity in the chosen banks: diversity as a
legal necessity and a competitive advantage.

(Extract 1) Our staff handbook is developed in accordance with “Codes of

Practice on Employment Relating Sex Discrimination Ordinance”,
“Disability Discrimination Ordinance” and “Family Status Discrimination
Ordinance”. We comply with discrimination laws and legislation in the
jurisdiction in which we operate. (Bank A, 2012: 16)

(Extract 2) Our employment practices do not discriminate on the grounds

of sex, marital status or pregnancy, family status, race, religion, national or
ethnic origin, or disability. We are committed to protecting human rights in
the workplace, as guided by our Equal Opportunities Policy as laid out in
our Human Resources Manual. (Bank B, 2012: 23)
 Legal Necessity or Competitive Advantage 95

(Extract 3) We strictly adhere to the letter and spirit of all relevant labour
and employment legislation and uphold the principle of ‘equal pay for
work of equal value’. (Bank B, 2012: 21)

(Extract 4) We have structures in place to ensure that our staff comply with
both the letter and spirit of all relevant laws, codes, rules, regulations and
guidelines and codes of conduct… our higher standards will apply where
these do no contravene or conflict with local law. (Bank B, 2012: 15)

(Extract 5) Our human resources policies comply with relevant

government legislation, ordinances and regulations. (Bank B, 2013)

In the extracts above the basis for diversity and the banks’
understanding of diversity stems not from an all-encompassing definition
suggested previously but rather from the obligation invoked by the legal
system: “comply with discriminations laws” (extract 1), “as guided by our
Equal Opportunities Policies”. The banks’ operate their diversity and
inclusion initiatives from a relatively narrow perspective, considering only
surface-level diversity, in terms of “sex”, “disability”, “family status”
(extract 1), “race, religion, national or ethnic origin” (extract 2). As Gates
(2014) argues, to many companies diversity is “limited to counting the
number of minorities and women in categories of employment, avoiding
legal liability, and buying good public relations for the price of table
sponsorship at community, civic and social functions”. Use of the
inclusive pronouns (“our”, “we”) as part of the strategy of unification
(Wodak et al. 1999) serves to encompass all those parts of the company,
implying a certain sense of ‘inclusion of diversity’, but in doing so also
homogenizing the diverse workforce under one label, quite contrary to the
very concept of diversity. More important to note, the extracts above, and
those investigated in the larger corpus, constantly refer to the law, through
use of legal terminology, thus enforcing the lawfulness of the companies
in question. Jargon here we can understand to mean

a special language which is based grammatically on the common language,

but which contains special features in the lexical, semantic and syntactic
areas. The speakers employ jargon in order to acquire prestige, but without
this prestige being justified by the imparted context of the form. (Wodak,
1989: 141)

Constant use of words including, “Codes of Practice”, “Ordinances”,

“jurisdiction”, “legislation”, “Equal Opportunities Policy”, “relevant
laws”, “regulations”, imply that the company’s diversity policy is firmly
96 Chapter Four

grounded in the local legal framework. Furthermore, repetition of the

phrase “letter and spirit of law” insinuate that not only does the bank apply
particular laws, but understands their nature, function and intention. In
saying so, the bank represents its diversity policy as not only legally
sound, but also not as blindly applied. The use of jargon in such cases
serves to “give an air of technical or scientific authority while making the
concepts referred to inaccessible to non-specialists: it is thus mystificatory
in aim and power-building effect” (Fowler and Marshall, 1985: 3).

(Extract 6) We provide well-structured curriculum to new frontline staff to

ensure that they are competent and their values are aligned with the
Group’s ethical standards in executing business activities. We conduct
post-training assessment to ensure that our training is effective in
developing the knowledge and skills of our employees. (Bank A, 2012: 18)

(Extract 7) In championing a diverse and inclusive workplace, we expect

all members of our team to demonstrate appreciation, care and respect for
each other, regardless of position, background, gender or age. (Bank B,
2012: 23)

The previous claims can be contrasted with the above extracts whereby
diversity is instituted out of a legal obligation, words and phrases such as
"well-structured curriculum", "frontline staff", "values are aligned", "post-
training assessment" (extract 6) all imply that diversity is considered at
best a subject of training rather than a point of awareness, an attitude or
mind set. Similarly, "we expect all members of our team to demonstrate
appreciation, care and respect" (extract 7) implies that diversity is a
subject or apparatus to be demonstrated, the examination of the subject of
training. Action verbs (“provide”, “aligned”, “conduct”, “develop”,
“champion”, “demonstrate”) in such complex sentences imply rigorous
action but, more importantly, initiatives on the part of companies, listing
actions, decisions, promoting a picture of growth and pro-active behaviour
regarding workplace diversity. The key problem with an implemented
framework that relies on mostly local laws is the actual
comprehensiveness of the very legal system it draws on for support. In the
case of Hong Kong, it’s approach to workplace diversity is still very much
a work-in progress, whereby even within established institutions such as
the Equal Opportunities Commission, the “limited number of cases in
which the EOC has been involved is reflective of the strong conciliation-
orientated settlement principle which underlies the EOC’s statutory
mandate and duty, under which many complainants have little choice but
to opt for the conciliation procedure….” (Kapai, 2009: 343)
 Legal Necessity or Competitive Advantage 97

Competitive Advantage
Hong Kong is an international city and business hub, and continues to
be a preferred choice for international and national companies to manage
their regional businesses. However, the city has been relatively slow to
embrace workplace diversity initiatives compared with global practices.
Shook Liu, an HR consultant at one of Asia’s largest executive recruitment
and human capital solution providers, states that “it is interesting to see
how so many multinationals have strong diversity initiatives worldwide,
yet currently in Asia little is practised or implemented” (Metcalfe, 2012).
As many concerned stakeholders have noted, some of the most obvious
aspects of diversity recognition have been neglected in workplace
initiatives. Russell (2013) notes that according to the HK Exchange data,
although “women account for roughly half the city’s population, they
comprise just over 10 per cent of board positions in Hong Kong’s listed
companies” (16). On the topic of race differentiation, Banerji, Vernon and
Yik (2011) note that for the most part, “senior positions continue to be
held by non-Asian staff – often at the local country level, but certainly at
the regional and global level” (4). Again, statistics show that 60% of ethnic
minorities felt that their ethnicity determined their career progress.
Commenting on the aspect of age, Secretary-General of the Asian
Corporate Governance Association in Hong Kong Jamie Allen states that
although many mainland China companies listed in Hong Kong are setting
the trend by appointing younger board members, the boards of Hong Kong
companies and particularly bigger ones “tend to be much older”.
According to Llopis (2011), many corporations around the world tend “to
increase the percentages of certain minorities in the overall employee pool
to mirror the country as a whole” in the name of diversity initiatives,
something the author calls “a misguided approach, even when it comes
with programs designed to help retain minorities that have been hired”.

(Extract 8) As a banking institution committed to developing our next

generation, we recruit talent through various platforms such as campus
recruitment fairs in Hong Kong and the Mainland. We provide summer
internship opportunities to undergraduate students to enable them to gain
work experience in the banking industry and we believe that working in
our business operation enables them to have a better understanding of the
Group and our culture. (Bank A, 2012: 18)

Local diversity initiatives are particularly lagging behind those of

global competitors, as they are not a top concern on the corporate agenda
for most local businesses. In extract 8 we see that that diversity in age and
98 Chapter Four

geography is compensated for by recruiting from student campuses in

Mainland China, equating globalisation with political preferences.

(Extract 9) We are an equal opportunities employer and all our employment

decisions are based on business needs, job requirements and individual
experience and qualifications. (Bank A, 2012: 16)

(Extract 10) We understand that an engaged staff team is crucial to the

Group’s long-term development. In 2012, a cross-departmental work team
was set up to specifically look at the engagement factors of innovation,
work process, company reputation, career development, compensation, and
developed strategic action plans. (Bank A, 2012: 17)

The implementation of diversity is considered to the extent to which it

is on par with "business needs and job requirements" (extract 9), thus
diversity initiatives are considered important not for the sake of workforce
motivation but for the sake of "long-term development" (extract 10).
Social, psychological, and self-esteem issues are equated with material
matters like "process", "reputation", "innovation", "compensation" and
"strategic actions" (extract 10), all of which imply the management of
diversity for the sake of competitive gain. Kirby and Harter (2001) in their
study found that diversity was derived from the concept of a quality work
life, inferring a more managerial approach to cultivating diversity, with the
intended aim of corporate profitability. The metaphor of managing
diversity “conceals the people involved… [it] linguistically… fails to
recognize that these are individuals who compose a diverse workforce, not
just a material resource of diversity…diverse people (now simply referred
to as diversity) become an asset to be managed to improve productivity to
gain a competitive edge” (123).
This study found similar examples of such managerial metaphors in
the data analysed:

(Extract 11) Under title “Talent Management”-

We believe effective talent management, which ensures successful
succession planning and meets business expansion needs, is fundamental
to the sustainable development of the Group. Thus we place a strong
emphasis on providing a systematic structure to continuously attract,
identify and develop talent. We have in place a well-established talent pool
consisting of professionals from different backgrounds with versatile
experience, covering different levels of staff to support our succession
planning. (Bank A, 2012: 17)
We continuously identify learning opportunities and facilitate a learning
process which is aligned with the needs of each individual and the long-
term growth of our business. We have in place a systematic talent
 Legal Necessity or Competitive Advantage 99

development mechanism underpinned by a “four-in- one” approach

involving senior executives, department heads, human resources personnel
and individual staff. (Bank A, 2012: 18)

The title of the section itself is a good indication of the approach the
bank takes to defining diversity within its corporate walls- the use of the
'managerial metaphor' "talent management", which Kirby and Harter
(2001) point out implies a “quick-fix' orientation” (43) to improving
management styles is a more management-, rather than workforce,
oriented approach that treats the workforce as an asset to be managed or
resource to be rebalanced. Repetition of this metaphor above reflected in
the phrases, "effective talent management", "identify and develop talent",
"well-established talent pool", "systematic talent development mechanism"
constrains and shapes the way people think, especially within the
organization. Such a metaphor implies that managers need to capitalize on
their workforce for the "long-term growth of our business". Such rhetoric
frames the discourse of diversity in the interests of the managers. The
managerial metaphor reveals the “unconscious biases” (Huffington Post,
2013) hidden in corporate informational discourses. Depersonification of
the workforce through such metaphors supports the corporate capitalist
discourse that allows workforces to be marginalized in favor of money
talk, but more importantly, structures the ways rifts or differences within
the organization may be treated or not treated at a more intrinsically
human level. As Kirby and Harter (2002: 44) mention, we often assume
that different organizations implement diversity initiatives in different
ways based on “advice found in texts, websites and other sources, but also
on the enduring organizational discourse about a diverse workforce and
the organizational system of rewards, control mechanisms, training and
development, and so forth… [including] how promotional literature is
consumed by managers and translated into diversity practices in specific
contexts”.

(Extract 12) To successfully establish long-term customer and community

relationships, we must provide our most valuable assets with the support,
skills and working conditions they need to deliver service excellence.
(Bank B, 2012: 21)

(Extract 13) Training on diversity and inclusion is incorporated in our New

Joiners programme, which is mandatory for all new members of staff. It
promotes diversity and inclusion across the Bank and guides employees in
practising inclusive behaviours in the workplace. (Bank B, 2012: 23)

(Extract 14) Managers with people responsibilities are also required to

100 Chapter Four

complete our ‘Unconscious Bias Learning for Managers (UB)’ course,

which reinforces the importance of dismantling any workplace barriers
that exclude people and of supporting a culture that is free from bias.
(Bank B, 2012: 23)

(Extract 15) In 2012, we provided around 22,000 hours of training on

human rights policies, procedures and awareness building that is relevant
to our work environment and operations. Issues covered include data
privacy protection, diversity and inclusion, equal opportunities, racial
discrimination, business ethics and staff code of conduct. (Bank B, 2012:
23)

(Extract 16) With the aims of retaining talent and ensuring a quality
internal pipeline we identify and develop individuals displaying high
potential…. (Bank B, 2013)

(Extract 17) Developing our employees effectively is essential if our

business and operations are to prosper. We take a systematic approach to
identifying, developing and deploying talented employees to ensure a
robust supply of high-calibre individuals with values, skills and experience
required…. (Bank A, 2013:23)

The extracts above extend the managerial metaphor from simply

managing the workforce as business assets to reimagining diversity in a
metaphorically reified form, as a "program", "guide" (extract 13), "a
barrier" to be "dismantled" (extract 14), or simply as "22,000 hours of
training" (extract 15), further constructing a reality where diversity is
something that can and should be managed. Extract 10 goes as far as to
literally refer to their workforce as “valuable assets” again depersonifying
the workforce into material resources, and diversity into a “value” that
they can be equipped with in order to “deliver service excellence”. The
terms service and excellence implying an almost mechanical quality to the
way the workforce is referred. Extracts 16 and 17 through the use of
metaphors “internal pipeline” and “robust supply” depersonify the
workforce into a machine that can be “developed and deployed”. Use of
the machine metaphor here removes from the equation of workplace
diversity any influence of cognition. The function of metaphor is thus to
reconceptualize how we understand issue or events, groups and society, in
this case workplace diversity. These metaphors become “principally a way
of conceiving one thing in terms of another” (Lakoff and Johnson, 1980:
36), revealing an “unconsciously formed set of beliefs, attitudes and
values” (Charteris-Black, 2005: 13). The workforce is thus treated as
 Legal Necessity or Competitive Advantage 101

The single-level conceptualisation of managing diversity within the

territory of legal or organisational policy fails to capture the interplay of
structural and agentic concerns of equality. For example, organisational
approaches towards diversity are greatly influenced by macro-national
forces external to the workplace, such as anti-discrimination and human
rights laws and socio- political policies towards gender mainstreaming and
multiculturalism. (Syed and Kramar, 2009: 645)

Conclusion
Similar to corporate social responsibility, diversity initiatives, in
particular around Asia, at the corporate level are often seen as public
relations exercise that have little real effect on actual workplace practices.
However, awareness of the practical importance of diversity initiatives has
recently been increasing in Asian companies. However, as Kirby and
Harter (2001, 2002) have noted, when companies label the workforce as
‘diversity’ and a culture of diversity as ‘management of assets’ they are in
fact framing human beings as material resources that need to be organized
and mechanized to seek competitive advantage over human motivation.
Furthermore, Mahtani and Vernon (2008: 6) suggest that more effort needs
to be made to dispel stereotypes that persist in the Asian mindset, be it
women not being forceful leaders or stigma regarding disabilities, and that
“[t]raining is used as a change agent but often fails in delivery in Asia as
its focus and development is often US or Europe centric. What is needed is
a concerted effort for companies to engage experts from Asia in
developing such programmes”. The indication here is that some failing in
diversity implementation or at least in diversity rhetoric may lie in a rather
‘white normative’ orientation in Asian measures, and perhaps a more
locally-oriented approach can enable the practice of ‘strategic diversity’.

(D)iversity is not just about people; it is about every complex situation,

decision, task, and perspective that imbues their companies. They know
that their companies' effectiveness is predicated on interlocking systems of
diversity mixtures, and that diversity is evident in everything their
companies do. Strategic diversity is not about advancing the numbers of
minority groups and women per se, but rather leveraging diversity
mixtures to support corporate business strategy, solve business problems,
and contribute to business growth.(Gates, 2014)

Although this is an academic study, it has immense practical value for

Hong Kong organizations. In response to the emerging importance of
workplace diversity and Hong Kong’s current weaker efforts to embrace
diversity initiatives, this study, deriving from a larger project, seeks to
102 Chapter Four

investigate exactly how companies talk about ‘diversity’ in their attempts

to inform, train and educate their workforces with the intended aim of
raising awareness amongst corporate management and administrators
about “the power of linguistic choices in promoting diversity initiatives”
(Kirby and Harter, 2002: 43), especially at the company level. This
includes a closer investigation of how we deal with diversity in the
workplace; how we reflect on differences between groups; and how we
address conflicts that result from differences, which is many times very
much a matter of rhetoric. As Syed and Kramar (2009: 644-5) indicate,

Socially responsible diversity management takes a relational, multilevel

perspective to understanding and managing diversity in a multicultural
society. Because of its multilevel and pluralistic nature, the approach is
likely to be best served by multiparty participation and negotiation to
identify and pursue time-bound targets and structural reforms for social
inclusion and integration. The approach is motivated by business as well as
social objective, thus potentially useful to realise the ideal of a
multicultural organisation.

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 CHAPTER FIVE

A CORPUS-BASED DISCOURSE ANALYSIS

*
OF REFUGEE IN EU LEGAL TEXTS1

GIUSEPPE BALIRANO
AND MARIA CRISTINA NISCO

Introduction: Towards a definition of Refugeehood

‘Everyone has the right to seek and enjoy in other
countries, asylum from persecution.’
Universal Declaration of Human Rights (1948) Article 14

This paper investigates some EU discursive strategies employed in

official European legal documents to linguistically represent those ‘special
migrants’ to Europe epitomised by the employment of the too often vague
token refugee*. If language plays some important part in producing and
reproducing social inequalities, our main insight and theoretical
contribution here is that the way in which EU institutions ‘language’2
refugeehood is deeply influenced by “relationships between the text and its
social conditions, ideologies and power-relations” (Wodak 1996: 20).
Accordingly, the present study aims at exploring the way official EU legal
documents construe the qualities and the sometimes biased features
attributed to the migrants classified as ‘refugees’.
Migration patterns, one of the oldest social and humanitarian concerns
of civilization, have grown to be progressively more problematical since

1
The authors discussed and conceived the article together. In particular, Giuseppe
Balirano is responsible for the following sections: Introduction, The European
Context, Refugees in CDA, Corpus Collection; Maria Cristina Nisco is responsible
for the following sections: Methodology and Corpus Analysis, Concluding
Remarks.
2
For more insights into the way we will be employing the verb ‘to language’, see
Balirano, Nisco 2015.
 A Corpus-based Discourse Analysis of Refugee in EU Legal Texts 107

global migration does not simply involve refugees, but also millions of
economic migrants. However, refugees and global and economic migrants
are deeply dissimilar travellers; hence they need to be treated very
differently under modern international law. While economic migrants
‘choose’ to leave their lands with the intention of improving their future
economic status, refugees are forced to flee in order to save their lives or
preserve their freedom. Refugees are, indeed, very often condemned to
death or to a miserable existence without sustenance or rights from their
own governments. The very status of refugee thus inevitably denotes those
persons who have no protection from their own countries of origin and
who are seen as a real threat to freedom.
In an attempt to provide an overview of a constantly changing
phenomenon – which is more and more difficult to pin down – the United
Nations agencies (the UN High Commissioner for Refugees and the UN
Relief and Work Agency) claim that there are currently some 43 million
victims of conflict and persecution worldwide. More than 15 million of
them are refugees who have fled their countries, while 27 million are
people who remain displaced by conflict inside their own homelands, thus
constituting the so-called ‘internally displaced people’.
The 1951 UN Convention relating to the Status of Refugees is the key
legal document providing an accurate definition of ‘refugee’ with precise
references to refugees’ rights as well as the legal obligations all governments
need to comply with. According to Article 1 of the Convention, a refugee
is a person who

owing to a well-founded fear of being persecuted for reasons of race,

religion, nationality, membership of a particular social group or political
opinion, is outside the country of his nationality, and is unable to, or owing
to such fear, is unwilling to avail himself of the protection of that country.
(UN Refugee Convention, 1951. Emphasis added)

However, despite the accurate definition emerging from Article 1, it is

also significant to highlight a sense of unrelenting vagueness suggested by
the employment of the pre-modifying adjectives well-founded and
particular. As D’Avanzo (2012) rightly remarks, both adjectives seem to
encode a wide range of possible meanings, in particular when they co-
occur with the term ‘fear’ and the phrase ‘social group’ respectively. Yet,
the UN Convention definition of refugee is, still today, deemed the most
comprehensive description referring to a person involuntarily displaced
from her or his homeland.
Before the UN Convention and until the late 19th century and the
materialization of rigid national boundaries, displaced refugees, not
108 Chapter Five

necessarily distinguished by a well-founded fear or defined as belonging to

a particular social group, had always been absorbed by neighbouring
countries. In 1921 Fridtjof Nansen,3 Norwegian explorer, scientist,
diplomat, humanitarian and Nobel Peace Prize laureate, created a League
of Nations Passport to allow refugees to move freely across national
borders. At that time, refugee status was granted only if the migrant’s
departure was involuntary and asylum was requested in another country. It
was in 1938 that the definition of refugeehood included also people with a
justifiable fear of persecution because of their ethnicity, religion,
nationality, group membership, or political opinion. At the beginning of
the 21st century there were some 16 million refugees, including nearly 4
million Palestinians; much of the rest of the world’s refugees were in Asia,
particularly in Afghanistan, and Africa. Various conflicts in the former
Yugoslavia and elsewhere in post-cold war Europe amplified the number
of refugees in those regions.
Following the 1951 Convention, everyone is entitled to exercise their
fundamental human rights under international law, and refugees and
migrants in ‘irregular’ situations are no exception to this rule. However,
such rights are commonly violated, since refugees often undergo arbitrary
and discriminatory treatment by a variety of countries across the world.
Even the fundamental human rights principle of non-refoulement –
according to which people should not be returned to a country where their
lives or liberty are at risk – is frequently ignored. As set forth in Article 14
of the Universal Declaration of Human Rights (1948), the principle of
non-refoulement, which is the starting point for the international refugee
law, reflects the commitment of the international community to guarantee
to all people the enjoyment of human rights, including the rights to life, to
freedom from torture or cruel, inhuman or degrading treatment or
punishment, and to freedom and security of person. These and other rights
are threatened when a refugee is returned to persecution or danger.

The European context

Within the context of the European Union, migration is regulated by a
combination of national law, EU law, the European Commission of

3
Nansen was appointed High Commissioner for Refugees, with the task of
coordinating all the relief organizations. His prime task was to provide the refugees
with an accepted means of identification. This would not only give them status, but
the possibility of having a new passport. Many governments agreed to recognize
the “Nansen passports” and thousands of stateless people were enabled to travel
and to settle in other countries.
 A Corpus-based Discourse Analysis of Refugee in EU Legal Texts 109

Human Rights (ECHR) and other international obligations pertaining to

individual states. Initially, the original treaties of the EU did not contain
any reference to human rights and their protection. Later, the European
Court of Justice developed a new approach to granting protection to
individuals by including fundamental rights in the general principles of
European law. Despite the fact that the EU Charter of Fundamental Rights
(proclaimed in 2000) was initially merely a declaration with no legally
binding effects, when the Treaty of Lisbon entered into force in December
2009, it altered the status of the EU Charter, making it legally binding.
Therefore, the EU Charter of Fundamental Rights provides for the right to
asylum in Article 18 and the prohibition of refoulement in Article 19.
Moreover, within the Common European Asylum System (CEAS), several
legislative instruments have been adopted to implement the States’ respect
of regulations under the 1951 UN Convention. Although under the ECHR
there is no right to asylum as such

turning away an individual, whether at the border or elsewhere within a

state’s jurisdiction, thereby putting the individual at risk of torture or
inhuman or degrading treatment or punishment, is prohibited by Article 3
of the ECHR. In extreme cases, a removal, extradition or expulsion may
also raise an issue under Article 2 of the ECHR which protects the right to
life. (EU FRA 2013: 36)

For over twenty years, EU countries have been working on harmonising

their immigration and policies on refugees, which resulted in a series of
Acts, reports and laws, among them in particular the Tampere and the
Hague Programmes. Such European Programmes aim at specifically
improving the capability of the Union and its Member States to guarantee
fundamental rights, regulate migration flows, and control borders to fight
cross-border crimes and terrorism. The Tampere and the Hague
Programmes depart mainly from the previously mentioned 1951 UN
Convention relating to the Status of Refugees, which entered into force on
22 April 1954. The Convention was followed by a Protocol in 1967, which
removed geographical and temporal restrictions.4

4
Several other acts were also passed in the UK, namely The Human Rights Act,
also known as the Act or the HRA, which came into force in October 2000. It is
composed of a series of sections that have the effect of codifying the protections in
the European Convention on Human Rights into UK law. The Nationality,
Immigration and Asylum Act which received Royal Assent on 7 November 2002.
Among other changes, the Act instituted the “Life in the United Kingdom test” for
everyone seeking naturalisation or permanent residence in the UK.
110 Chapter Five

In 1999, the Finnish town of Tampere hosted a special EU Council

summit dedicated to the creation of an Area of Freedom, Security and
Justice. Under this initiative and the ensuing Tampere Programme (1999-
2004), negotiations started on the creation of a Common European
Asylum System (CEAS). EU Member States asked for a common asylum
system to deal with a number of specific problems stemming from the
large differences in asylum systems and practices among them. However,
since asylum seekers were perceived to gravitate towards countries with
higher recognition rates and social benefits, to deal with these challenges,
EU Member States decided to harmonise their asylum systems and reduce
the differences between countries on the basis of binding legislation.
The Tampere Programme is notable for having produced the first set of
legally binding EU-level agreements on asylum. The programme’s main
agenda includes: temporary protection for persons displaced by conflicts; a
common understanding of refugee status and ‘subsidiary’ protection;
minimum conditions for the reception of asylum seekers; regulation on
deciding which Member State is responsible for assessing which asylum to
claim. The programme represents the EU’s agenda for further
development of migration and asylum-related policies. Even though the
European Council decided on this programme, the Tampere agenda still
appears as a ‘wish list’ rather than a detailed policy document.
In November 2004, the European Union set a new and ambitious five-
year course called the ‘Hague Programme’ to strengthen freedom, security,
and justice within the 25 Member States of the EU. The Commission
presented a Communication taking stock of the implementation of the
Tampere agenda and setting future guidelines for a new justice and home
affairs agenda for the years to come. As the multi-annual programme it
follows the Conclusions from Tampere 1999 and establishes general and
political goals in the area of Justice and Home Affairs for the period of
2005-2009. The Hague Programme specifically aims to improve the ability
of the EU and its Member States to: guarantee fundamental rights; access
to justice; fight organised crime; repress the threat of terrorism; provide
protection to refugees; regulate migration flows and control the external
borders of the Union. While explicitly providing forms of protection to
refugees, this programme also introduces the concept of integration, which
is new on the agenda: rather than seeking only fair treatment of refugees,
the EU is aiming for their full integration as members of the European
society.
 A Corpus-based Discourse Analysis of Refugee in EU Legal Texts 111

Refugees in CDA studies

Studies on the representation of immigration necessarily engage with a
dialogic confrontation of core concepts such as boundaries, prejudice,
ideology, hegemony, power and legitimation, which tend to frame
discourse as the real architect of biased and/or hegemonic practices. It is in
fact discourse which institutes those social, economic and political
practices preventing specific groups from accessing material and symbolic
resources. According to Fairclough and Wodak (1997), discourse is a
socially constitutive instrument as well as a socially binding one since it
has a crucial role in shaping beliefs as well as disseminating and
popularising them. Moreover, van Dijk’s socio-cognitive (1985, 2006,
2008), Wodak’s discourse-historical (Reisigl and Wodak 2001; Wodak
and Chilton 2005; Wodak, de Cillia, Reisigl, Liebhart 2009) and van
Leeuwen’s socio-semantic (1996, 2008) approaches to discourse analysis
have aptly suggested several analytical categories which, by shaping the
representation of so-called minority groups in discourse, have served to
develop a real methodology for the analysis of less represented, less
powerful social actors. Over the last two decades, indeed, studies in
Critical Discourse Analysis (CDA) have paid large consideration to the
linguistic and semiotic constructions and representations of social out-
groups such as immigrants, asylum seekers, refugees and all other
‘minority’ groups often discriminated against, which are generally
construed as illegal or unwelcomed foreigners in most ‘democratic’
societies. Discourses on discrimination refer to the use of both different
and unequal treatment of specific ethnic or social groups on the basis of a
real or imaginary feature or groups of features which tend to be socially
construed as negative marks compared with dominant and hegemonic
groups.
Several critical discourse analysts have been recently investigating
ideology and group discrimination in specialised discourses against
specific socio-political contexts, including the EU (see on the topic: van
Dijk 1987 and 1991; Jones 2000; Lynn and Lea 2003; Garzone and
Sarangi 2007; Baker, Gabrielatos et al. 2008; KhosraviNik 2009; 2010;
D’Avanzo 2012). Throughout these discourse studies, the connotational
values associated to people who have moved out of their home countries in
order to achieve better living conditions turn out to be associated, in
varying degrees, with negative meanings (KhosraviNik 2009: 488).
Against this backdrop, the present study seeks to explore the way EU
official legal documents ‘language’ vague qualities and the often biased
features attributed to the migrants classified as ‘refugees’. Moreover, we
112 Chapter Five

will also be looking at whether it is possible to trace the most significant

differences in the linguistic construal of refugees in EU documents and in
previous representations from the EU Programmes.

Corpus collection
The corpus under scrutiny comprises two main subcorpora: EU-
ProgrCorpus and EU-LexCorpus.
The first and smaller subcorpus, EU-ProgrCorpus, consists of 14,675
running words. It includes two main texts: the Tampere Programme and
the Hague Programme. The second subcorpus, EU-LexCorpus, includes
258 legal texts selected from the EU official service EUR-Lex for a total
number of 744,322 running words. EUR-Lex aims to enhance public
access to European Union law providing online versions of all the legal
texts produced by the European Union; it is considered an EU official
Journal.5 EUR-Lex includes legislative proposals and EU law such as
treaties, legislation, directives, regulations, decisions, consolidated
legislation, and preparatory acts such as legislative proposals, reports,
green and white papers, etc.
In particular, we decided to focus our attention on EU case-law looking
at one specific section: Jurisprudence. This section displays different legal
documents grouped into three main sub-categories: Court of Justice,
General Court (pre-Lisbon: Court of First Instance) and Civil Service
Tribunal. Each sub-category collects documents under specific descriptors
such as: Judgments, Opinions, Seizure, Third party proceeding, Ruling and
Communication. We then decided to concentrate on the international
agreements on EU policies relating to the immigration of refugees in
Opinions and Judgments sub-sections, over a specific time-span going
from 2008 to 2013. The time-span was chosen as a consequence of the
European Refugee Fund (ERF) launch, which was initially implemented
by EU countries from 2008 to 2013. Following the ERF publication, a
series of national annual programmes were prioritized with the resulting
proliferation of refugee-related national and super-national documents:

The ERF (EUR 630 million over the period 2008-13) supports EU
countries’ efforts in receiving refugees and displaced persons and in
guaranteeing access to consistent, fair and effective asylum procedures.
The Fund also supports resettlement programmes and actions related to the
integration of persons whose stay is of a lasting and stable nature.
Moreover, it provides for emergency measures to address sudden arrivals

5
http://eur-lex.europa.eu/collection/eu-law.html?locale=en.
 A Corpus-based Discourse Analysis of Refugee in EU Legal Texts 113

of large numbers of persons who may be in need of international

protection, which place significant and urgent demands on EU countries'
reception facilities or asylum systems.6

Furthermore, the rationale behind our working only with two legal
text-types, Opinions and Judgments, is mainly due to the fact that both
opinions and judgments represent EU viewpoints, or statements, about
matters very frequently deemed as subjective, i.e. based on what is less
than absolutely certain. A legal opinion is usually a written explanation by
a judge or group of judges that accompanies an order or ruling in a case,
laying out the underlying legal principles for the ruling. Opinions are
usually published at the direction of the court and contain pronouncements
about what the law is and how it should be interpreted. They explain,
reinforce, or may even change or overturn legal precedent. Opinions are
generally seen as the result of the judges’ personal interpretations of facts
while judgments pertain to more formal decisions made by a court
following a lawsuit. They present a balanced weighing up of evidence to
form a decision or opinion. Moreover, both opinions and judgments are
transnational legal orders, they require some adequate dialogue between
national and supernational courts. The frequent use of necessary references
to foreign law in refugee cases, which also means a constant dependence
on linguistic and cultural translation, may obviously generate semantic and
cultural ambiguity. This, in fact, provides a layer of complexity to legal
discussions on international refugee law, in which subjective
interpretations can easily resort to ‘indefinite’ language use, giving rise to
misunderstanding or vagueness in interpretation. As a matter of fact, case
studies on European judicial practice have revealed a mix of subjective
and cultural factors that lead European judges to largely ignore each
other’s decisions within the EU (Goodwin-Gill and Lambert 2013). The
corpus under investigation can certainly shed light on the way EU
linguistic practices succeed in ‘languaging’ and representing refugeehood
from a conceptual and European institutional point of view.

Methodology and Corpus Analysis

For the corpus investigation, a methodology combining quantitative
and qualitative approaches was adopted with the main purpose of merging
Corpus Linguistics and Critical Discourse Analysis. The use of techniques
associated with Corpus Linguistics and CDA is not a new practice in text

6
http://ec.europa.eu/dgs/home-affairs/financing/fundings/migration-asylum-
borders/refugee-fund/index_en.htm.
114 Chapter Five

analysis (Stubbs 1994; Biber et al. 1999): the former can be said to
provide a statistical overview of large numbers of tokens, features and
patterns, while the latter is concerned with the close reading, detailed
analysis and interpretation of particular stretches of discourse. Such an
integrated approach – which was developed with slightly different
characteristics by Partington (2004, 2008) under the label ‘Corpus-
Assisted Discourse Studies’, and by the Lancaster-based group of scholars
as ‘Corpus-Based Discourse Analysis’ (Baker 2006; Baker et al. 2008;
Gabrielatos and Baker 2008; Baker et al. 2013) – can be extremely
fruitful, since it offers a series of advantages. Firstly, it tackles the tricky
question of the researcher’s bias by assuming a higher degree of reliability
(rather than objectivity, which is often difficult to attain) and self-
awareness (the researcher’s position and his/her involvement in all the
choices and decisions taken for analysis are clearly acknowledged).
Secondly, drawing on large corpus data can give evidence of particular
features that would be less likely to emerge from small-scale studies.
Therefore, by pinpointing topical areas – as unveiled by key-words,
collocates and concordances – this combination can offer interesting
insights into the ways in which language constructs discourses as much as
it does with reality.
Analysis of our sub-corpora began with a qualitative reading of the
EU-ProgrCorpus that was meant to bring to light relevant topics in the
texts of both programmes. Some of the common themes that could be
identified concerned the need for the EU to guarantee fundamental human
rights to vulnerable and displaced persons; the need to provide protection
to refugees while controlling the EU’s external borders (so as to fight and
repress crime and terrorism); the attempt to seek refugees’ full integration
rather than just their fair treatment.
This stage was then followed by a quantitative investigation based on
word and collocate lists, frequency information and concordance data.
Statistical examination was carried out by using the software Wordsmith
Tools 5.0 (Scott 2008). As emerges from Tab. 5-1 (which displays the first
ranking lexical items and their corresponding raw frequencies), wordlist
retrieval revealed the presence of several tokens referring to the subjects
directly addressed by the programmes, namely the European Union (with
its main institutions – the Council, Commission, Parliament – and its
Member States) and the people leaving their countries of origins to enter
the EU, often referred to through the phrase ‘third country nationals’
(whose lexical items appear among the most frequent tokens). We
therefore chose to further investigate how the institutionalised language of
the EU construes both represented actors.
 A Corpus-based Discourse Analysis of Refugee in EU Legal Texts 115

TOKEN FREQ.
European 234
Council 215
should 144
Member 106
Union 102
States 95
Commission 80
asylum 67
protection 66
countries 64
nationals 61
third 61
security 54
cooperation 53
integration 53
law 47
EU 46
ensure 41
authorities 41
migration 40

Table 5-1 Most frequent lexical items in the EU-ProgrCorpus

Detailed examination of the items employed in relation to the EU

featured a great emphasis on what the Union should or must do (should
having a very high frequency value in the list), as shown by some of the
most representative examples from concordance lines in Tab. 5-2:

1. The EU must ensure fair treatment of third country nationals who

2. more vigorous integration policy should aim at granting them rights
3. Union should also develop measures against racism and xenophobia
4. European asylum and migration policy should be based on a common
5. the second phase should be based on solidarity and fair sharing of

Table 5-2 Concordances of the key-word Eu*/Union in the EU-

ProgrCorpus

The presence of such modal verbs – which are commonly used to make
recommendations, give advice, express obligation as well as expectations
– suggests the need for the programmes to prescribe a series of measures
and actions to be taken by the EU in areas where policies were probably
116 Chapter Five

still weak.7 In fact, most of the concordances retrieved concern the need to
ensure a fair treatment of people in need based on solidarity and non-
discriminatory policies, along with a more effective implementation of
plans in the field of asylum and migration. While public security, national
safety and cooperation (items which could also be found among the most
frequent tokens) are advocated in reference to the Union, the management
of migration flows is often explicitly urged to avoid humanitarian disasters
and ensure refugee protection.

1. The European Council stresses the need for more efficient

management of migration flows at all their stages.
2. EU, to enable these countries better to manage migration and to
provide adequate protection for refugees
3. migration will play an important role in enhancing the knowledge-based
economy in Europe, thus contributing to the implementation of the
Lisbon strategy.
4. the EU, where the management of migration flows should be
strengthened by establishing a continuum of security measures
5. The separate but closely related issues of asylum and migration call for
the development of a common EU policy to include the following

Table 5-3 Concordances of the key-word Eu*/Union in the EU-

ProgrCorpus

More specifically, the European Union claims to be determined to

tackle at its source illegal migration, especially combating those who
engage in trafficking in human beings and economic exploitation of
migrants. Similarly, the programmes also state that EU policy should aim
at assisting third countries to improve their capacity for migration
management and refugee protection, and resolve refugee situations by
providing better access to durable solutions.
Further quantitative investigation of the EU-ProgrCorpus, with a
specific focus on the subjects involved in the migration process and
attempting to enter the EU, has shown that they are only referred to

7
Generally speaking, in legal discourse, the use of should rather than other modal
verbs (like shall, for example) implies a less binding nature of the obligation.
However, it can still be said to have a prescriptive value, since it is employed to
instruct Member States on the aims to be achieved in the field of migration and
asylum. Must is less common in legal English because it is quite subjective
(objective obligation tends to be expressed by means of have to). On the use of
modals in legal texts, see Garzone 2001.
 A Corpus-based Discourse Analysis of Refugee in EU Legal Texts 117

through the following lexical items: (third country) national* and refugee*
(respectively having a raw frequency value of 76 and 21).
Analysis of the collocates and concordances of these two tokens – then
adopted as key-words – has then allowed the identification of the main
stretches of discourse in which they were used in the Tampere and the
Hague Programmes to be made.
In particular, concordances of the key-word national* (used as a noun
rather than an adjective) seem to often mention the concepts of stability,
integration, fair treatment and legal recognition of new nationality for
legally resident third country nationals, as evident from the instances in
Tab. 5-4.

1. Stability and cohesion within our societies benefit from the successful
integration of legally resident third country nationals and their
descendants.
2. recognizing the progress that has already been made in respect of the fair
treatment of legally resident third country nationals in the EU, the
European Council calls for the creation of equal opportunities to
participate fully in societies.
3. Integration is a two-way process involving both legally resident third
country nationals and the host society, it includes, but goes beyond,
anti-discrimination policy, and it implies the respect for the basic
values of the European Union and fundamental rights.
4. EU, fully committed to the obligations of the Geneva Refugee
Convention and able to respond to humanitarian needs on the basis of
solidarity. A common approach must also be developed to ensure the
integration into our societies of those third country nationals who are
lawfully resident in the Union.
5. The European Council endorses the objective that long-term legally
resident third country nationals be offered the opportunity to obtain the
nationality of the Member State in which they are resident.

Table 5-4 Concordances of the key-word national* in the EU-

ProgrCorpus

However, it should also be acknowledged that the achievement of such

aims relating to integration and stability is dependent on the status of third
country nationals as legally resident in one of the EU Member States
(resident and legally being some of the strongest collocates of the node
national*).
Further examination of the lexical items employed by the EU
Programmes to refer to displaced people, collocates and concordance
analysis of the key-word refugee* revealed a specific emphasis on aspects
118 Chapter Five

relating to the protection of refugees, both on the part of the EU as much

as the countries of origins and transit.

1. EU should aim at assisting third countries to improve their capacity for

migration management and refugee protection
2. The objective of the Hague Programme is to improve the common
capability of the Union to guarantee fundamental rights, to provide
protection in accordance with the Geneva Convention on Refugees
and other international treaties to persons in need
3. The European Council acknowledges the need for the EU to contribute in
a spirit of shared responsibility to a more accessible, equitable and
effective international protection system, to provide access to
protection for refugees at the earliest possible stage.
4. Countries in regions of origin and transit will be encouraged in their
efforts to strengthen the capacity for the protection of refugees.
5. the European Council emphasises the need for intensified cooperation
and capacity building, to enable these countries better to manage
migration and to provide adequate protection for refugees.
6. The EU urges the Council to step up its efforts to reach agreement on the
issue of protection for displaced persons and refugees on the basis of
solidarity between Member States.

Table 5-5 Concordances of the key-word refugee* in the EU-ProgrCorpus

The instances above show that the Geneva Convention on Refugees

still remains the main reference for the European Union in terms of
protection of refugees and displaced persons as well as regulation of
migration flows. The other important element emerging from the texts of
the programmes is the call for solidarity: agreement on the protection of
refugees should be reached on the basis of a shared solidarity between
Member States.
Investigation of the EU-ProgrCorpus was then followed by
examination of the EU-LexCorpus. In an attempt to examine the
institutionalised language of EU case-law, as far as judgments and
opinions are concerned, our analysis then focused on the terms used to
refer to the ‘people who moved out of their countries and entered the EU’,
to examine how refugees are construed in relation to the European Union
in the 2008-2013 legal documents constituting the EU-LexCorpus corpus.
An initial qualitative reading of all the texts in the corpus allowed us to
identify the main terms employed in reference to migrants entering the
EU. This preliminary qualitative analysis was followed by corpus
investigation. Tab. 5-6 reports the emerging tokens and their
corresponding raw frequencies:
 A Corpus-based Discourse Analysis of Refugee in EU Legal Texts 119

TOKEN FREQ.
(Stateless) Person* 1,695
Refugee* 815
(Third-country) National* 537
Returnee* 98

Table 5-6 Frequencies of tokens adopted as key-words in the EU-

LexCorpus

The above-mentioned tokens were thus adopted as key-words in our

quantitative study of the extended concordances retrieved from the
subcorpus. Indeed, by uncovering discursive features that would not be
otherwise detectable through manual inspection, such an analysis can shed
light on the possible ideological implications underlying the EU policies
on refugeehood along with the prevailing political attitude in the EU
towards this status.
Starting with the concordance analysis of the key-word refugee*, one
recurring item can be noticed from the concordance lines (some of the
most representative samples are provided in Tab. 5-7):

1. origin. As regards refugee return, complete without delay the process of

2. for accelerating the process of refugee return and local integration
3. adopt and bring into force legislation supporting refugee returns. In
4. Complete the refugee return process, facilitating economic and social
5. refugees decide to leave the Member States and return home

Table 5-7 Concordances of the key-word refugee* in the EU-LexCorpus

The token that co-occurs more frequently with the node refugee* is the
deictic term return, which is employed here both as a verb and as a noun.
Return* can be seen as a linguistic marker of spatial deixis8 which signals
a call for the refugees to return back to their countries of origin. Such a
specific collocational pattern, in fact, insinuates the idea that refugees can
only be temporarily accepted within EU borders. The resulting image
seems to oppose two geographical locations: EU Member States, on the

8
Starting from the assumption that lexical choices and discourse structures strictly
depend on the type of worldview that is to be conveyed – language being socially
conditioned (Fairclough 1989) – deixis can offer relevant insights. In fact, it
represents the anchorage of an utterance in the extra-linguistic context in which it
occurs (Fillmore 1997), and as such, it may be seen as an extremely effective tool
to identify and locate people, events, processes and activities in relation to a spatio-
temporal context (Lyons 1975: 63).
120 Chapter Five

one hand, and the refugees’ home countries, on the other. Such a symbolic
representation of the EU space where refugees are somehow provisionally
received only to be subsequently rejected, is however in stark contrast not
only with the 1951 UN Convention, but also – and most importantly for
our analysis – with the EU Programmes recommendations, all invariably
emphasising the importance of creating a safe and welcoming place for
people fleeing persecution. Moreover, since the documents under scrutiny
are all legal texts, such a debatable interpretation of EU space might
progressively become binding in future opinions and judgments of EU
institutional discourse.
The other significant finding emerging from corpus analysis results in
a remarkable number of lexical items collocating with the key-word
refugee* and concerning the economic and financial implications of the
phenomenon of migration, as shown in Tab. 5-8.

COLLOCATES FREQ.
fund 209
financed 87
financing 79
expenditure 51
provision 30
funds 19
allocation 19
measures 18

Table 5-8 Collocates of refugee* pertaining to the financial semantic

domain in the EU-LexCorpus

Indeed, a qualitative reading of the extended concordance lines (of which

some samples are provided in Tab. 5-9 below) has uncovered that great
emphasis is on the economic ‘management’ of refugees, in the first place, as
much as the financial resources that EU Member States need in order to cope
with what – more or less explicitly – emerges as the ‘burden’ of refugees:

1. to establish a European Refugee Fund to ensure continued solidarity

2. payments are made under the European Refugee Fund and the documents
3. a financial reserve in the event of a mass influx of refugees
4. expenditure of funds for the resettlement of refugees
5. additional financial support can be granted for refugee repatriation

Table 5-9 Concordances of refugee* pertaining to the financial semantic

domain in the EU-LexCorpus
 A Corpus-based Discourse Analysis of Refugee in EU Legal Texts 121

In other words, most of the concordances seem to rely on the urge to

provide EU Member States with the practical support needed to face the
arrival of refugees while encouraging them to leave. Far from representing
migrants and refugees as a resource, a feature often found in some of the
past legislative texts (at least until the early 2000s), this linguistic
construal of migrants and refugees in terms of a financial and economic
burden seems to suggest a different attitude of EU institutions. Migrants
are not welcome any longer, despite their hopes – and rights – to find
better living conditions away from persecution. These data are in line with
a series of additional programmes upon which Member States agreed from
2002 onwards. As a matter of fact, in 2002 the EU Council adopted the so-
called Return Action Programme (specifically developing common
guidelines to repatriate ‘illegal’ immigrants), and in 2008, under the EU
Pact, Member States additionally pledged to expel illegal immigrants from
EU soil, while strengthening border controls and working to achieve a
joint asylum policy by 2012. However, since the texts under scrutiny are
all drawn from Opinions and Judgments, we expected a more subjective
viewpoint on behalf of the judges tackling such a difficult topic rather than
totally adhering to the recommendations of the so-called Return Action
Programme most recently found in more binding directives, regulations,
treaties etc. Our corpus analysis of the key-word refugee* shows that the
EU institutional discourse increasingly indexes refugees through deictic
linguistic elements indicating a movement back to their countries of
origin. This practice clearly suggests that the EU new trend is to allot
funds and financial support to the rejection rather than the much advocated
acceptance of refugees, thus overturning the previous appeal of the EU
Programmes.
Our second key-word, returnee*, appears in itself an interesting case,
since it explicitly refers to someone who returns to a place after being in
another country for military service, work reasons, prison and so forth.9
The adoption of this specific lexical item suggests that a great attention is
paid to what can be termed as a voluntary return home. A qualitative
reading of the concordances (with the most significant instances in Tab. 5-
10) has unveiled two interesting features. Firstly, an excessive
consideration of the issue linked to the migrants’ return, which is
linguistically marked by the frequent co-occurrence of the lexical item
return with the key-word returnee*, having a slightly pleonastic and
redundant effect. Secondly, there is a lot of emphasis on the returnees’
reintegration and repatriation in their local communities and countries of

9
See the Merriam-Webster, http://www.merriam-webster.com/dictionary/returnee.
122 Chapter Five

residence, something which has a major relevance within the European

Union legal discourse, as evident from the samples below:

1. social and economic conditions for returnees’ reintegration and the

2. process of returnee/refugee return towards their social reintegration
3. assistance to returnees in preparing the return, as well as repatriation
4. documents for returnees, ensuring speedy and successful removals
5. returnees may be provided for in order to promote voluntary return

Table 5-10 Concordances of the key-word returnee* in the EU-LexCorpus

Indeed, repatriation and local reintegration are presented as the most

successful, viable and durable solution – considering that only a minority
of refugees have successfully resettled and locally integrated in host
societies. Repatriation and local reintegration are further described as the
only sustainable process which could mark the end of the migrant’s trauma
while in diaspora. Such a novel interpretation linguistically and socially
works to inadvertently subvert the original already vague well-founded
fear to the point of construing, even more vaguely, the refugees’
experience of migration as a new reversed ‘trauma’. This contradicts the
principle of non-refoulement which is among the obligations accepted by
the Member States to achieve the goal of refugee protection stating that
“no refugee should be returned in any manner whatsoever to any country
where he/she could be at risk of persecution”, and even more dangerously
failing to comply with UN Convention Articles: 25, 27, 28, 31, 32 and
34.10
Moving to our last two key-words, national* and person*, which were
almost always employed in the phrases third country national* and
stateless person*, a qualitative reading of the concordances has evidenced
that they were often employed together, and this is the reason why we
decided to analyse them jointly. Nonetheless, they should not be
mistakenly treated as synonyms, since they actually indicate two different
conditions. The pre-modifier ‘third country’ is generally used in treaties to
refer to individuals who are in transit and/or apply for visas in countries
that are not their countries of origin in order to go to another destination

10
Even before the introduction of the principle of non-refoulement, the 1951 UN
Convention prescribed freedom from penalties for illegal entry (Art. 31) and
freedom from expulsion (save on the most serious grounds, Art. 32). States have
also agreed to provide certain facilities to refugees, including administrative
assistance (Art. 25), identity papers (Art. 27), travel documents (Art. 28), and most
importantly facilitating their naturalisation (Art. 34).
 A Corpus-based Discourse Analysis of Refugee in EU Legal Texts 123

country (which is sometimes not even a member of the European Union).

On the other hand, the pre-modifier stateless refers to the condition of an
individual who is not considered as a national by any state (the UNHCR
specifies that, although stateless people may sometimes also be refugees,
the two categories are distinct).11 Stateless persons face massive problems
since possession of nationality – and consequently citizenship – is
essential for full participation in a society and, most importantly, a
prerequisite for the enjoyment of the full range of human rights.
Interestingly, however, some common elements seem to emerge as
characterising both key-words, as the extended concordance lines in Tab.
5-11 show:

1. third country nationals to States, allowing border management activities

2. of third country nationals who are refused entry at the external border
3. third country nationals or stateless persons, burden-sharing between
4. management of EU external borders when third country nationals or
stateless persons
5. EU should make best efforts to send third country nationals and stateless
persons back

Table 5-11 Concordances of the key-words national* and person* in the

EU-LexCorpus

As in previous instances, the EU highlights that efforts should be made

to send third country nationals and stateless persons back to their states of
origin or permanent residence, although their case can be even more
complex because, unlike refugees who are protected by international
conventions and regulations, third country nationals and stateless persons
neither belong to the country of refuge nor the one they fled. So it is often
up to individual governments to take care of them and arrange for their
repatriation.12
A qualitative reading of the concordances retrieved with the two key-
words has also uncovered an additional discursive feature: in fact, it is
worth noting an explicit emphasis on the EU Member States’
responsibilities in managing the EU external borders, which are to be
patrolled, protected and safeguarded from the onus of migrants. In this
context, third country nationals and stateless persons are often only
mentioned to claim that they should not hinder the management of

11
http://www.unhcr.org/pages/49c3646c155.html
12
See the IRIN website (a service of the UN Office for the Coordination of
Humanitarian Affairs) http://www.irinnews.org/.
124 Chapter Five

external borders, something which seems to signal an important – and

dangerous – change in the EU institutional attitude. Therefore, what was
initially meant to be the protection of refugees’ rights has now turned into
the protection of EU Member States.

Concluding Remarks
The most striking findings emerging from a contrastive corpus-based
discourse analysis of the EU-ProgrCorpus and the EU-LexCorpus
concerns the fact that there has been a substantial and drastic shift from the
humanitarian dimension of the events connected to phenomenon of
migration to an almost exclusively economic and financial dimension.
Indeed, while there is no reference to the terrible and dreadful experiences
that migrants and refugees have faced both in their countries of origins and
in their journey towards the EU, their presence is linguistically envisaged
as a problem. Far from being regarded as a resource – as it could be
inferred from the examination of the EU-ProgrCorpus, where European
societies were said to benefit from migrants’ successful integration –
displaced people are then rather depicted as an onus. As a matter of fact,
the prevailing linguistic construal emerging from the EU-LexCorpus
analysis is that of an economic burden requiring the financial support of
EU Member States. Despite the widely-proclaimed objectives of
establishing a series of solidarity mechanisms strengthening the Member
States’ capacity to provide protection and share responsibilities, hence, the
full integration of refugees as members of the EU does not appear to be
achieved.
Overall, contradictory priorities can be observed within the European
Union, since the policies adopted in response to migration do not seem to
comply with the objectives stated by the official programmes. While there
seem to be more and more tensions among different EU Member States
between calls for solidarity, protection, integration for refugees and human
rights, on the one hand, and the specific interests of each Member State, on
the other hand, it is worth noting that the question of refugees and asylum
policy is increasingly tackled in terms of protection from refugees rather
than protection of refugees. Both European and national institutions agree
on common plans and actions on asylum and migration when the objective
is to limit or exclude the entry of migrants, as well as to expel them.
However, when the purpose is to reach a wider and more comprehensive
approach to such issues (also in relation to a concept of EU citizenship as
an evolutionary and unavoidable process all Member States should cope
with), it is evident that the only common policy that EU Member States
 A Corpus-based Discourse Analysis of Refugee in EU Legal Texts 125

are ready to agree upon is a policy of refusal and exclusion of migrants

and refugees. This novel policy emerges quite clearly from our analysis of
the EU-LexCorpus, where the recurrence of deictic items expressing a
movement back, away from the EU, discursively indexes and construes
refugees. The frequent co-occurrence of lexical items referring to the
return, repatriation and reintegration of refugees in their home
communities indicates a very straightforward attitude of the EU, imposing
prohibitive measures against this phenomenon. In fact, deictic elements
are meant to signal important relations of inclusion and exclusion from EU
borders, fostering an authorial and hegemonic EU legal discourse.
Accordingly, the ‘return policy’, which plays a pivotal role within the EU
Judgments and Opinions sub-section, is in stark contrast with the EU
Charter of Fundamental Rights as much as the Tampere and the Hague
Programmes’ aims (not to mention the 1951 UN Convention which was
the major reference for the programmes).
Far from stressing the need to improve migration policies, enhancing
them and increasing their efficiency in the protection of refugees fleeing
persecution – something which, in line with the findings from the EU-
ProgrCorpus, marked a more favourable attitude towards migration
characterising the Tampere and the Hague Programmes – most of the data
retrieved from the EU-LexCorpus concerned the urgent need to complete
and/or accelerate refugees’ process of return and repatriation, and the
necessity to adopt and bring into force legislation supporting such actions.
So the resulting prevailing image conveyed by the most recent EU legal
texts strongly emphasises a sense of closure, aiming at the protection of a
European safe space against the threatening arrival and permanent
presence of refugees and migrants.

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 CHAPTER SIX

REGULATING THE LAW OF SEEDS:

A COMPARATIVE ANALYSIS OF SOCIAL
REPRESENTATIONS IN LEGAL VERSUS
ECOLOGICAL DISCOURSES

MARILYN PASQUA

Introduction
In 2013, the European Commission proposed a revision of the Plant
Reproductive Materials Law (2013/0137), which is currently made up of
12 Directives partly dating back to the 1960s. Plant reproductive material
refers to any kind of plants (e.g. seeds) used for the production of other
plants. The 12 Directives, covering the most important plant species (about
150 listed species) on the EU market, are replaced with a single
Regulation, made up of 145 articles. The proposal has been put forth for
two main reasons. First, the commission aims at reinforcing conditions of
food safety; second, it aims at increasing exports of seed from the EU to
the rest of the world. The law itself will make it mandatory for all member
states to enforce as law the restriction of sale and use of any seeds which
have not been registered with and approved by the European Union. The
restrictions imposed by the regulation of seeds control agro-biodiversity
and violate farmer/breeder rights. This has led to a European petition
promoted by consumer groups, small-scale farmers and gene banks as the
legislation will give power to the global seed industry and corporations,
which control seeds through genetic engineering and patents. As a result,
traditional seed sharing and saving by local farmers will become illegal.
As stated in Art. 146,

this regulation will enter into force on the twentieth day following that of
its publication in the Official Journal of the European Union
130 Chapter Six

and

[…] 36 months from the entry in force […], this regulation shall be binding
in its entirety and directly applicable in all Member States. (EU legislation,
2013: 93)

From an ecological viewpoint, this legislative control has been

questioned for its historical, geographical and quantitative restrictions by
several ecological advocates. A prominent leader of ecological justice
amongst these is Vandana Shiva, the well-known Indian political activist,
economist, ecologist, ecofeminist and social justice activist. In the forests
of the Himalayas and through the social movement (Chipko, or to hug),
Shiva acquired knowledge about biodiversity and the urge to preserve it,
which triggered her ongoing pursuit for ecological justice. Following the
approval of the European Commission’s seed legislation, Shiva et al.
(2013: 3) openly stated that:

the ecological and biological laws of the Seed draw upon the perennial
laws of nature and evolution based on diversity, adaptation, resilience and
openness. They also draw on principles of jurisprudence of human rights,
public goods and the commons.

Thus, alongside the EU plant reproductive material law, Shiva drafts a

new natural law, namely, The Law of the Seed (2013) with the purpose of
putting “[…] diversity and […] sustainability […] at the centre of the
scientific and legal frameworks that govern the seed […]” (p. 7). Previous
studies have investigated Shiva’s position in terms of her counter-
hegemonic discourse of biodiversity positioned within the alter-
globalisation movement (e.g. Plastina 2014).
This chapter focuses on the ways in which the law of seeds is regulated
within the institutional European legislative domain and within the context
of the Working Group of Navdanya International, founded by Shiva as a
network of seed keepers and organic producers spread across 17 states in
India. The study intends to highlight the crucial role played by social
representations in legal vs. ecological discourse. Social representations are
purposed to different types of group interest so that

the predicted internal structure of the representation and the extent to

which it is dispersed within a recognisable group or social category will
depend upon the functions it is serving. (Breakwell 1992: 1)

These functions will obviously differ in legal vs. ecological discourse.

 Regulating the Law of Seeds 131

For example, while legal discourse on the release of genetically

modified foods into our food supply is very flexible in the United States,
Alexander (2009: 134) points out that:

Agriculture has become a capitalist business in most of the world; hence

the use of the English word 'agribusiness' to describe the commodification
of food production.

In this perspective, the study considers how new social representations

in the regulation of seeds are pushed forward and old ones transformed
through discourse, which shifts from the institutional EU legal sphere to
that of Shiva’s eco-legal domain.
According to Jodelet (1991), social representations are “images that
condense manifold meanings that allow people to interpret what is
happening” (as cited in Howarth 2006: 70). The term was coined by
Moscovici (1961) to indicate:

system of values, ideas and practices with a twofold function: first to

establish an order which will enable individuals to orient themselves in
their material and social world and to master it; and secondly to enable
communication.[…] by providing a code for social exchange and a code
for naming and classifying unambiguously the various aspects of their
worlds and their individual and group history. (Moscovici 1973: xiii)

Furthermore, representations are generated along a continuum where

time, culture, technology and discourse shape the social representations of
individuals and groups. Thus, social representations reflect changes which
take place within historical, cultural and economic contexts, circumstances
and practices in different ways (Höijer 2011). Representations are shaped
by referring to the surrounding environment in order to understand it and
convey meaning about it. In this sense, social representations serve two
major functions: descriptive and normative. They can “familiarize the
unfamiliar” (Moscovici 2000) through detailed descriptions, or they are
sourced to evaluate things according to pre-established socio-legal norms.
For the sake of this study, social representations are considered for their
normative value as basically “[…] they are beliefs embedded in systems of
norms” (Doise 2002: 78). It follows that the roots of legal thinking can be
sought in normative social representations more than in its institutional
expression.
132 Chapter Six

Social Representations
Representations are conceptualized as social and detain a certain
autonomy, when they entail shared concepts of a common object
(Moscovici, 1998). In other words, social representations refer to socially
shared constructions (Marková, 2012). These representations are referred
to as hegemonic representations as they are mutually shared and “prevail
in all symbolic or affective practices” (Moscovici 1988: 221). In the
present case, social representations of ‘seeds’ have long remained
unaltered. The social signification (Barthes, 1957; Greimas 1990; Lotman
1990; Eco 2000) of ‘seeds’ had not entailed evident processes of social
change through human sense-making processes until the advent of
globalization. Thus, from a socio-historical perspective, the representation
of seeds was predominantly hegemonic according to the classification
proposed by Social Representations Theory. Rapid scientific and
technological advances, and economic, political and societal changes
(Wagner 2012) are generating dynamic shifts in social representations,
which are now becoming emancipated representations due to “a certain
degree of autonomy with respect to the interacting segments of society”
(Moscovici 1988: 221). These representations are constructed by
individuals or groups who are exposed to new information, but are not
incompatible with hegemonic representations. Emancipated representations,
however, evolve due to controversies and struggles between groups which
are determined by “antagonistic relations” and “intended to be mutually
exclusive” (Moscovici 1988: 221). The resulting social changes determine
the rise of the so-called polemic representations, which become relevant
for those engaged in social conflict. In this perspective, the conflict
between hegemonic representations of “seed” generated by the phenomenon
of globalization and polemic representations shaped by ecological
movements, is central to this study.

The Comparative Study

The broad aim of this study was to investigate normative social
representations based on the regulation of plant reproductive material in
terms of its social representations. More specifically, it attempts to identify
and compare legislative differences between two discourses dealing with
the use of seeds in modern society from different socio-legal perspectives.
In this, the following two research questions are posed:
 Regulating the Law of Seeds 133

1. Which social representations are attributed to seeds in legal and

ecological discourse?
2. Which representational meanings are constructed by the European
Commission’s legislation compared to Shiva’s natural law?

The Corpus
Two main contrasting documents, namely, the EU Plant Reproductive
Material Law (2013/0137) and The Law of the Seed (2013), proposed by
Vandana Shiva, were the materials used for the study. The corpus included
the first section of the EU law (from the Explanatory Memorandum to
article 17) and Shiva’s law, structured in 24 articles. The reason for
restricting the EU document to only part of it was due to the need to strike
a certain balance between the materials. Thus, the corpus was made up of
23,151 running words (the EU Plant Reproductive Material Law: 13,621;
The Law of the Seed: 9,530).
A small corpus was thus created and the texts under analysis were
investigated qualitatively, drawing on social representations theory
(Moscovici, 2000). The study, therefore, adopts a critical discourse
analysis approach in which the interface between social and discourse
structures (cf. van Dijk, 1998) lies in the social representation of seeds.
The aim of the research is to identify and compare differences between the
two discourses in terms of social representations.

Method and Procedure

The method introduced in the study was grounded in the social
representations theory (e.g. Moscovici 1961, 2000) with specific reference
to two minimum conditions for plant reproductive material: it can be
defined ambiguously, and different aspects of it can be salient for
legislation and ecology. Furthermore, based on the association between
social representations and practices, a critical discourse analysis approach
was adopted to seek potential social practices in terms of the expertise
regarding actions related to seeds and the different ways of executing such
actions (cf. Flament and Rouquette 2003). As an interface between social
and discourse structures (cf. van Dijk 1998), critical discourse analysis
was found to be a suitable approach as it assumes that

social actors involved in discourse do not only use their individual

experiences and strategies, they rely mainly upon collective frames of
perceptions, called social representations. (Meyer 2001: 21)
134 Chapter Six

In particular, two analytical categories were taken into account, namely,

anchoring and objectifying. According to The Social Representations
Theory, there are two basic socio-cognitive communicative mechanisms
that generate social representations. Höijer (2011) outlines the different
mechanisms. The first mechanism, anchoring, makes the unknown known
by bringing it into the pre-existing framework of earlier social
representations so that we may associate, interpret and construct the new
representation. Anchoring mechanisms have different variables: naming,
emotional anchoring, thematic anchoring, metaphoric anchoring and
anchoring in antinomies. The second mechanism, objectifying, makes the
unknown known by transforming an abstract concept, idea or value into a
concrete or figurative representation. Variables of objectifying mechanisms
are: emotional objectification and personification.
Variables of the first socio-cognitive mechanism modify and give a
new social representation to pre-existing knowledge. By naming the
unknown is classified and assumes a social identity. As Moscovici argues,
by naming something, we “locate it, in fact, in the identity matrix of our
culture” (Moscovici 2000: 46, original emphasis). Emotional anchoring
refers to a communicative process by which a new cognitive representation
of a concept or object is associated to emotions. Thematic anchoring
captures the cognitive and semantic reference of concepts, ideas or values.
Themes related to social representations are created and preserved by
society (Moscovici: 2000) and can be altered whenever the intention is to
alter patterns of thinking for placing a new social representation among
individuals and groups. Metaphoric anchoring and anchoring in antinomies
refer to “underlying categories of meaning, antinomies such as life/death
or culture/nature etc., or by the use of metaphors” (Höijer 2011: 9).
Variables of the second socio-cognitive mechanism of objectifying are
“to discover the iconic quality of an imprecise idea or being, to reproduce
a concept in an image” (Moscovici 1984: 38). The icon or figurative
representation draws on emotions in emotional objectification.
Personification is referred to the representation of a concept, idea or value
through a person.
Critical discourse analysis was first performed separately on the single
documents to identify the social representations attributed to seeds and the
types of mechanisms employed. In a subsequent phase, a comparative
critical discourse analysis was conducted to highlight the representational
meanings constructed and to seek the types of contrasts which emerged.
 Regulating the Law of Seeds 135

Findings and Discussion

Findings on social representations of seeds within normative and
ecological discourse are reported below.

Normative vs Ecological Social Representations

Seeds are valued and conceptualized through a variety of
representations within the two documents analyzed. The most common
attributes allotted to seeds are listed in Tab. 6-1.

EU law The Law of the Seed

1. marketing of seed 1. freely saving seed
2. intellectual property 2. seed exchange
3. creation 3. lifeforms
4. registration of varieties 4. seed related law
5. listed species 5. seed diversity
6. seed scheme rules & 6. sovereign beings
regulations 7. local species and varieties
7. certification of plant 8. living organisms
reproductive material 9. Seed Freedom
8. propagating material 10. Food security
9. seed testing
10. technical and scientific
developments

Table 6-1 Most common attributes related to “seeds”

Tab. 6-1 indicates how seeds are attributed a commercial value

regulated by EU Legislation as opposed to the free saving of seeds which
should not be subjected to restrictions. Thus, seeds are identified as
intellectual property rather than as a source of exchange. Normative
discourse reduces seeds to material goods which belong to a small
category of humans (professional operators) and legislation clearly
intends “to protect the commercial interests” (EU legislation, 2013: 18) of
these operators. By contrast, ecological discourse emphasises that seeds
are not human property but should be considered as an essential exchange
in order to protect biodiversity and to face the current crisis, understood as
“a crisis of ethics and values” (Shiva et al. 2013: 7). The third most
common attributes are creation vs. lifeforms. In this case, seeds are created
by professional operators, who claim ownership and seek regulation.
136 Chapter Six

Ecologically, seeds are lifeforms and as such, they regulate themselves

naturally and through farmers and breeders’ traditional knowledge.
Furthermore, seeds are artificially classified (registration of varieties)
despite the fact that there is a natural seed related law. In this regard,
Shiva et al. (2013: 4) argue against the dominant system of Industrial
Patents on Seed which:

…treat seed as an ‘invention’, and hence the ‘intellectual property’ of

corporations […] which privilege uniformity and industrial breeding […]
on farmers’ varieties and open pollinated varieties, which are bred for
diversity and resilience.

In normative discourse, only those species which are listed are legally
acknowledged, whereas the natural diversity of seeds is indefinite and
unlimited. In this way, Shiva juxtaposes the ecological power of seeds
(sovereign beings) to human seed scheme rule and regulation. Thus, the
Law of the Seed qualifies seeds as subjects, as animated independent
organisms which possess the ability and capacity to self-organize
themselves autonomously. In turn, there is no need for “technical
examination concerning their distinctiveness, uniformity or stability” (EU
legislation, 2013:18) or for a certification of plant reproductive material.
but rather the need to continue the ecological processes brought forth by
farmers:

Farmers have bred for diversity, quality and resilience, as opposed to the
paradigm which privileges Distinctiveness, Uniformity, and Stability
(DUS). (Shiva et al. 2013: 32)

Thus, according to the ecological discourse, there is the need to

consider the local species and varieties from farmers’ eco-perspectives.
Seeds instead, become globalized and propagated materially as inanimate
objects, losing their identity of living organisms. In this normative process,
seeds are tested for selection so that Seed Freedom is strongly restricted
with a heavy loss of biodiversity. Finally, the need for seed regulation is
due to technical and scientific developments, which appear to prevail over
the promotion of food security, which can be guaranteed only through
traditional farming.
 Regulating the Law of Seeds 137

Naming and Emotional Anchoring

The anchoring mechanism of naming was employed in both documents
as shown in Examples (1) and (2) to represent patents on seeds vs. patents
on life.
EU legislation and The Law of the Seed diverge in representing seeds.
Example 1 classifies seeds as plant species. The term species carries the
sematic trait of typology and therefore something that needs classification,
whereas example 2 stresses the essential feature of seeds as lifeforms
which “makes patents on seeds morally, scientifically and legally
inappropriate” (Shiva et al. 2013: 7).

(1)
A number of Commission Horizontal Working Party meetings covering all
the plant species were held in 2009-2011.

(2)
India, in its submission, had stated “Clearly, there is a case for re-
examining the need to grant patents on lifeforms anywhere in the world.

Furthermore, seed is named as material which is regulated by the

European Commission as in Example (3):

(3)
… in order to introduce flexibility for future technical and scientific
developments, heterogeneous material, which does not fulfil the definition
of a variety, could be exempted under certain conditions from the
requirement that that material belongs to a registered variety.

Conversely, Shiva highlights the quality of being able to self-regulate

without the intervention of human beings as in Example (4):

(4)
Life forms, plants and seeds are all evolving, self-organized sovereign
beings.

In Example 5, the term ‘Seed’ is replaced and named by the European

Commission as Plant Reproductive Material. The Law of the Seed defines
genetically engineered seeds as ‘terminator seeds’:

(5)
The current EU legislation for making available on the market of plant
reproductive material is based on two main pillars, namely the registration
138 Chapter Six

of varieties/material and the certification of individual plant reproductive

material lots of plant species as identified in the Directives ('EU listed
species').

In Example (6), the term ‘terminator’ within Law of the Seed is a

mechanism of both naming and emotional anchoring. In fact, ‘terminator
seeds’ is not only associated to death by the anchoring mechanism of
naming but it is also anchored to environmental risk and fear of extinction.

(6)
Industrial breeding has used different technological tools to consolidate
control over the seed – from so called High Yielding Varieties (HYVs), to
hybrids, genetically engineered seeds, “terminator seeds”, and now,
synthetic biology.

Moreover, instances of emotional anchoring do not occur within the

EU legislation due to the peculiarity of the genre.

Thematic Anchoring
Thematic anchoring plays an essential role within both discourses as it
lays down the core patterns of thinking for re-representing ‘seeds’. Seeds,
in fact, are no longer a hegemonic representation. The EU document is
imposing an emancipated representation of seeds which is countered by
Shiva’s polemic representation, contrasting the EU document and re-
establishing the traditional hegemonic representation.
Both the European and Shiva’s discourse construct knowledge by
drawing on the theme of evolution. EU justifies the restrictions imposed by
the legislation of seeds by anchoring legislation to the theme of evolution,
whereas Shiva anchors nature to evolution as in Examples (8) and (9):

(8)
There is a need to harmonise implementation of the legislation, reduce cost
and administrative burdens and support innovation.

(9)
Evolution is the process by which nature practices its capacity of selection;
for selection to exist, nature needs diversity.

Moreover, if the need for legislation is linked to evolution on the one

hand, the objective of the legislation, that is the European and global
 Regulating the Law of Seeds 139

market of plant reproductive material is also anchored to the theme of

evolution as in Example (10):

(10)
It is also important to adapt to the technical progress in plant breeding,
and to the rapid evolution of the European and global market of plant
reproductive material.

By contrast, The Law of the Seed anchors years of farmers’ breeding to

evolution. Moreover, freely saving and sharing seed are thematically
anchored to both evolution and culture as indicated in Example (11):

(11)
Seed is the first link in the food chain and embodies millennia of evolution
and thousands of years of farmer’ breeding as well as the culture of freely
saving and sharing seed.

In addition, regulation is promoted in two diverging perspectives. On

the one hand, EU legislation constructs knowledge on the need of a seed
legislation by anchoring plant species to health and quality as in Example
(12); on the other, the Law of the Seed refers to regulation as the
ecological and biological laws, which are anchored to the themes of nature
and evolution as in Example (13).

(12)
Detailed criteria need to be established to decide which genera and plant
species shall not be made available on the market as standard material to
ensure enhanced quality and health, identity and traceability of plant
reproductive material as well as food and feed security.

(13)
The ecological and biological laws of the Seed draw upon the perennial
laws of nature and evolution based on diversity, adaptation, resilience and
openness.

Finally, Example (14) is a case of thematic anchoring in the EU

document of the current legislation in the needs of change:

(14)
The main objective of the consultations was to seek views on the
provisions and application of existing legislation and the needs for change.
140 Chapter Six

Conversely, The Law of the Seed anchors varieties to tradition

(Example 15), underlining the loss of diversity caused by genetically
homogenous varieties which legislation is planning to introduce within EU
countries:

(15)
Considering that since the beginnings of agriculture, a considerable
amount of biodiversity has built up in crop production; the application of
scientific methods to plant breeding, however, led to the substitution of
traditional local varieties by widespread genetically homogeneous
varieties, and thus to a dramatic loss of diversity;

Anchoring in Antimonies
Antinomies can generate oppositional and new viewpoints, creating
tensions and contrasting ideas and values in society.
The EU document justifies the power to adopt acts, by highlighting the
need to prevent forest reproductive material from the risk of lack of
quality and health as shown in Example (16):

(16)
In order to avoid risks in relation to quality and health of the forest
reproductive material concerned, the power to adopt acts in accordance
with Article 290 TFEU should be delegated to the Commission in respect
of supplementing the requirements set out in this Regulation concerning
clones and clonal mixtures[…])

Shiva, instead, criticises this legislation for violating natural laws

without any jurisprudential grounds as in Example (17):

(17)
In contrast, the dominant legislation today, related to seed, is in total
violation of the Law of the Seed and democratic processes without any
basis in jurisprudence or science. An arsenal of legal instruments are
steadily being invented and imposed that criminalize age-old farmers’ seed
breeding, seed saving and seed sharing.

Moreover, Example (17) also uses the mechanism of emotional

anchoring by placing the dominant legislation with its arsenal of legal
instruments in clear opposition to age-old farmers who are criminalized.
 Regulating the Law of Seeds 141

Emotional Objectification
Emotional Objectification is useful for familiarizing a concept, idea, or
value rendering it concrete and perceivable through representation.
Emotional Objectification does not occur within the EU document due to
the peculiarity of the genre. Shiva makes use of a strong emotional
component in the following examples:

(18)
Such laws are being framed everywhere, preventing us from responding to
climate change, preventing us from making a transition from high cost
industrial agriculture – which is leading farmers to being pushed off the
land and, in extreme cases, committing suicide – to ecological agriculture.

(19)
With patents on seed, this implies that the farmers’ right to save and share
seed is now in effect defined as “theft”, an “intellectual property crime”.

(20)
[…] modern plant breeding, an activity which eventually affects food
production and hence food security in a world where one of the major
threats is climate change and its consequences including, among others,
newly invasive pests and diseases.

The term suicide in Example (18) evokes a human image of death,

while theft and crime in Example (19) arouse the emotion of a personal
object that is illegally taken away. In Example (20), threats refer to the
current legislation as favouring climate change and diseases which evoke
catastrophic consequences.

Personification
While no instances of Personification were found in the EU legislation,
significant samples occurring in Shiva’s Law of the Seed are provided in
Examples (21) and (22):

(21)
[Seed] is the expression of earth’s intelligence and the intelligence of
farming communities down the ages.

(22)
The gift or exchange of seed of any variety, or its placing on the market,
shall be governed by the principles of seed sovereignty.
142 Chapter Six

Thus, the Earth lies on the same plane as traditional farmers, both
gifted with the balanced intelligence to favour sustainability and diversity
throughout the centuries. In this scenario, the seed itself holds the power of
a sovereign who governs human manipulation and profit.
In other words, the trilogy formed by Earth, nature and seed, is capable
of ruling itself, and fights against forms of human technology and
legislation.

Conclusions
This paper has investigated the legislative and ecological discourses of
seeds, highlighting the ways in which their social representations are
constructed, supported and promoted by EU legislation and the ecological
work of Vandana Shiva. As pointed out by Jovchelovitch (2010: 3.5):

[…] we come into a social world that is already structured by social

representations and through processes of social influence this social world
is ready to structure us […]

In this respect, the social representations constructed by legislative

documents impose an artificial perspective of seeds on European Citizens.
The attributes found in the study indicate how the emancipated
representations conveyed through normative discourse are in clear
contrast with the hegemonic value seeds have had for centuries within the
ecological system of biodiversity. This conflict, which arises from
phenomena including globalization, as well as industrial and technological
advancements, was found to generate polemic representations in the
ecological discourse analysed. Furthermore, the mechanisms employed in
the two types of discourses suggest that social change can be fostered by
re-representations of social reality which can be countered via polemic
representations. Legal discourse can be a very powerful tool for the
promotion of changes within social reality. Laws can, indeed, impose a
diverse perspective shaped by means of representations which justify their
enforcement. In this regard, the study has shown how legislation supports
shifts in social practices, including genetic engineering. On the other hand,
Shiva’s ecological discourse of biodiversity suggests that practices of
chemical industrial agriculture and chemical monocultures, which are
legally endorsed, are unsustainable as they are driven by human profit and
not by the laws of nature.
 Regulating the Law of Seeds 143

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 PART III:

JUDICIAL AND OUT-OF-COURT DISCOURSE

 CHAPTER SEVEN

MULTIPLE NEGATIVES IN LEGAL LANGUAGE:

THE CASE OF ENGLISH, ITALIAN AND SPANISH

STEFANO ONDELLI
AND GIANLUCA PONTRANDOLFO1

Introduction
On 5th February 2013 the online version of “The Age” – the newspaper
based in Melbourne, Australia – published an article on two journalists
who had launched an appeal against the decision of a court requiring them
to disclose their sources. One of the sentences reported in the article was
subsequently quoted on a website proposing a humorous view of news and
events relating to law and justice.2 The authors had selected that specific
sentence because they believed it was the first known case of quintuple
negative ever produced in the world. The sentence is reported below:

The grounds of appeal announced on Monday state Justice Sifris erred in

not finding Mr Goldberg was wrong in failing to set aside the
summonses.

Admittedly, the sentence is far from straightforward and the words in bold
are meant to highlight five negatives. But are they really negatives?
A closer look shows that the adverb “not” and the periphrasis “to fail
to do something” are undoubtedly negatives; however, from a syntactic
viewpoint, “erred”, “wrong” and “set aside”, rather than proper negatives
should be considered words having negative value at semantic level. For

1
Stefano Ondelli wrote the first part of this chapter dealing with Italian, up to and
inclusive of the section entitled “Double and multiple negatives in Italian”, and
Gianluca Pontrandolfo the remaining sections, except the concluding paragraph,
which is the product of their joint effort.
2
www.loweringthebar.net/2013/02/quintuple-negative.html
 Multiple Negatives in Legal Language 147

example, even in the presence of a “semantically positive” antonym such

as “he is right”, there is little doubt that “he is wrong” cannot be classified
as a negative construct. Couplets like “tall” and “short” or “beautiful” and
“ugly” behave in the same way and deciding which of either antonym is
the “negative form” of the other is quite difficult.
This chapter aims to shed light on what are known as “double” or
“multiple negatives” in legal texts drafted in three European languages:
Castilian Spanish, British English and the varieties of Italian used in both
Italian and Swiss courts. This syntactic feature belongs to the set of traits
traditionally criticised by the advocates of plain language and regarded as
typical of the language of the law and public administration. For the
purpose of our study, corpora of court judgments and control corpora
comprising newspaper articles were compiled for all three languages under
scrutiny. All methods and materials used for a quali-quantitative analysis
are described in detail in the sections below.

Analysis
Multiple negatives in legal Italian: state of the art

Virtually all guidelines for plain Italian state that affirmative

constructions are preferable instead of negative sentences and double
negatives are best avoided. For example, Fioritto (2007: 45) reports the
following cases:

Incorrect examples Suggested solutions

1 Non si può non ammettere che Si può/si deve ammettere che
2 Non esente da IVA Soggetto a IVA
3 Non è vietato È permesso
4 Non è inammissibile È ammesso

Table 7-1 Right and wrong

This strategy is based on the assumption that affirmative sentences are

semantically equivalent to their negative counterparts but easier to
understand. However, a clear morphological distinction can be made
between examples 1 and 4 and examples 2 and 3. The former either
include two instances of the negative adverb “non” or add another
negative form (the prefix “in-”) to “non”; the latter merely replace a
negative construct with an affirmative sentence including the antonym of
an adjective or past participle. There is little doubt that only the former can
be considered “double negatives”, as correctly stressed in the plain
148 Chapter Seven

language manual published by Ittig and Accademia della Crusca (2011:

22), where an example is made including two negative adverbs (“non si
può non esprimere”).
Researchers in legal Italian have paid little attention to negative
constructs and generally devoted only short remarks to the matter. For
example, when referring to bureaucratic rather than legal Italian, Serianni
(2007: 130) notes the high frequency of litotes for euphemistic purposes.
Similarly, Lubello (2012: 50) claims that administrative texts show an
inclination for negative constructs aimed at mitigating references to
disabilities (e.g. “non udente”, “non vedente”) or weakening orders or
prohibitions (“i ricorsi non vengono accettati” instead of “vengono
respinti”). Again, no examples are provided including two or more
negative morphological markers. Finally, Mortara Garavelli (2001: 149)
dwells more extensively on the – allegedly fading – preference of legal
texts for negative clauses, sometimes leading to litotes; in addition,
negative constructs are said to be more frequent than in everyday Italian,
in particular when two negative forms are used in the same sentence,
leading to litotes. An example can be found in Article 27 of the Italian
Constitution: “Non è ammessa la pena di morte, se non nei casi previsti
dalle leggi militari di guerra”.
With a view to an – albeit partially – quantitative analysis of multiple
negatives, serious problems emerge in the identification of the rhetorical
figure that goes under the name of litotes (Garavelli Mortara 1998: 176-
178). Although this periphrastic construction, verging on apophasis, is
abundantly present in common, everyday language, stock expressions like
“it cannot be denied that” provide evidence of the difficulties that may be
encountered in the selection of equivalent affirmative forms. In the case at
hand, deontic “it must” is readily available as the opposite of “it cannot”,
and “to state” is the antonym of “to deny”; however, the overall meaning
of this sentence is more accurately rendered by expressions such as “one
should allow/admit that” rather than “it must be stated that”: nuances are
paramount.
Together with reticence, innuendo, diminution and euphemism, litotes
is one of a set of mitigating strategies whose interpretation is strongly
dependent on the context of use. Moreover, as noted by Perelman and
Olbrechts-Tyteca (2013: 316-17), it is closely connected to hyperbole: an
utterance like “he hasn’t worked today” is just a negative construction, but
a slight change (also in terms of the intonation) such as “he hasn’t worked
very much today” will suffice to trigger a potentially antiphrastic reading,
which is even more apparent in “he certainly hasn’t worked like a slave
today”. Owing to these contextual and pragmatic difficulties, the
 Multiple Negatives in Legal Language 149

quantitative analysis of our corpora has been limited to multiple negatives

that can be identified through morphological markers.
In Italian (Manzotti 1991 and Bernini 2011), negative forms are
obtained by introducing “non” before a verb or other grammar classes (not
always leading to compound words: “non violenza”, “non-violenza”,
“nonviolenza”), possibly strengthened by “mica”. Other forms that may be
combined with “non” include adjectives and pronouns (“nessuno”,
“niente”, “nulla”), adverbs (“mai”), conjunctions (“neanche”, “neppure”,
“nemmeno”, whose function is to add more negative items or rule out any
other possibility) and correlative conjunctions (“né… né…”).
Morphological resources leading to a negative meaning of adjectives,
nouns and verbs include prefixes: s- + consonant, dis- + vowel or
consonant, in-, ill-, im-, irr-, a- + consonant, an- + vowel (sometimes with
privative value: “amorale” vs. “immorale”), mal- and mis- (mention can
also be made of anti- vs. filo-, e.g. “anti-rivoluzionario”). If items obtained
with these prefixes fall within the negative range of “non”, the resulting
clause can be interpreted as equivalent to an affirmative construct (litotes),
e.g. “non è insensibile” = “è sensibile”. However, it should be remembered
that sentences containing “non” preceded by “mai”, “nessuno”, “niente”,
“nulla” are grammatically correct in Italian and cannot be considered a
double negative.
For the purpose of a quantitative survey, in the absence of
morphological markers, the insertion of lexical items with negative
meaning (“è falso che beva” = “non beve”) or verbs expressing inaction
(“evitare”, “tralasciare”, etc.) have not been included in our analysis.
Consequently, lexical items whose meanings can be considered negative
for one reason or another (Manzotti 1991: 246 and 248) have not been
taken into account.

Italian corpus building

Our analysis has been conducted on a corpus of Italian texts exceeding
one million tokens and including a subcorpus of legal texts drafted in Italy
and the Italian-speaking Swiss Canton of Ticino and a control subcorpus
comprising newspaper articles (“Il Corriere della Sera” and “l’Unità”).
The legal subcorpus composition is as follows: 132 judgments of all
sections of the Italian Court of Civil Cassation (CASS subcorpus) and 111
judgments of the Ticino Cantonal Court of Appeal, dealing with several
subjects excluding criminal law (TACT subcorpus). All texts were
published between 2009 and 2011, are evenly distributed within that
period of time and cover a wide range of subjects. Along with all figures
150 Chapter Seven

referring to laws, judgments and other documents (as well as dates), liable
to impact on lexicometric measures, all markedly stereotyped and
repetitive text segments identifying the case, the court and the parties have
been removed, so that the corpus includes the components loosely
contributing to the grounds for the decision and the operative part, where
the court enjoys relatively greater freedom of expression. The newspaper
subcorpus (mostly editorials and columns) comprises 348 articles from “Il
Corriere della Sera” (CORR subcorpus) and 246 from “l’Unità” (UNIT
subcorpus).
Following their normalisation with “Taltac2” (www.taltac2.it), the four
subcorpora have proved homogeneous in size: 274,933 tokens in CASS,
269,808 in TACT, 273,531 in CORR and 270,322 in UNIT. They have
been lemmatised and POS-tagged with “Treetagger” (www.ims.uni-
stuttgart.de/projekte/corale/TreeTagger; Marco Baroni’s tagset was used)
and finally re-imported into “Taltac2” to carry out text mining procedures.

Quantitative analysis of negatives in Italian

First of all, we have measured the frequency of (simple, double or
multiple) negative constructs in all four subcorpora to check whether they
are actually more numerous in legal texts. This was achieved by simply
identifying all linguistic items used in negative constructs in Italian; the
results are illustrated in Tab. 7-2:

Court Newspaper
CASS TACT CORR UNIT
judgments articles

Non 2,974 3,194 6,168 6,670 3,174 3,496

Nessun* 59 64 123 467 193 274
Niente 2 3 5 163 57 106
Nulla 38 65 103 139 54 85
Mai 42 88 130 495 226 269
Mica 0 0 0 8 5 3
Né 148 241 389 256 117 139
Neanche 11 5 16 67 39 28
Neppure 80 85 165 92 24 68

Nemmeno 8 93 101 89 64 25
 Multiple Negatives in Legal Language 151

Mancat* 194 110 304 15 7 8

Omess* 177 3 180 0 0 0

Total 3,733 3,951 7,684 8,461 3,960 4,501

Table 7-2 Negatives in the Italian corpus

As shown by the total figures, negatives seem to be more frequent in

the Italian press than in legal texts (and, within the latter, the majority is
recorded in Swiss court judgments). In particular, negative items are
constantly more numerous in the articles published in “l’Unità”, with the
notable exception of “neanche” and “nemmeno” (but they are synonyms of
“neppure”, which is markedly more numerous in “Il Corriere delle Sera”)
and “mica” is only present – albeit rarely, since it is a low-register choice
– in the press. “Nessun*” (the asterisk replaces any vowel) is more than
twice as frequent in newspaper articles, both as an adjective and as a
pronoun, and the distribution of “niente” and “nulla”, in addition to
proving that these lemmas are more frequent in the daily press, shows that
they are virtually interchangeable in the newspaper articles, whereas
“nulla” is de facto the only possible choice in court judgments.
The correlative conjunction “né” is one of the very few negatives –
along with “mancat*” and “omess*”, which will be dealt with below – that
play a dominant role in the legal subcorpus. “Neppure” cannot be
considered another exception because it is an alternative (probably deemed
more elegant and formal by judges) of “nemmeno” and “neanche”: the
overall number of the three lemmas is only slightly greater in court
judgments (282 occurrences vs. 248). “Mancat*” is not mentioned in
grammar books among the resources used in Italian to create the negative
form of a noun (normally an abstract noun or a noun derived from a
verb).3 Dwelling upon the actual status as negative markers of “mancat*”
and “omess*” exceeds the scope of this paper; however, their insertion
before nouns seems to produce results comparable to the insertion of
“non” or the use of other negative prefixes (e.g. mancato/non/dis- accordo
or omessa/non denuncia).4 Those lemmas have been included in our

3
For a more detailed analysis, against the background of past participles preceding
nouns, see Ondelli 2014.
4
The main difference is that “mancat*” and “omess*” rule out the existence of
something that was expected, in particular events (hence their greater frequency
with nouns derived from verbs); consequently, “mancato accordo” refers to an
152 Chapter Seven

research because they are very frequent in legal texts, so much that they
can be considered a distinctive feature of legal Italian: our analysis shows
that they are used in negative constructs almost exclusively in the legal
subcorpus: in the press “mancat*” is twenty times less frequent and
“omess*” is absent.
The analysis of the occurrences of “non” before nouns, adjectives and
verbs shows that none of the subcorpora contains compound forms, such
as “nonviolenza” or “nonviolento”, although one hyphenated form (“non-
esistenza”) occurs in TACT. Moreover, this negative construct is more
frequent in the language of the judges of the Italian Court of Cassation
(especially with abstract nouns and derivations from verbs; see Tab. 7-3)
who combine “non” with a greater range of lemmas, while many of the
combinations involving “non” present in the other subcorpora can be
classified as recurrent and fixed strings (e.g. in TACT, “non luogo a
procedere” accounts for over one third of the total occurrences, whereas
“non lontano”, “non facile” and “non governativo” add up to almost one
fifth of adjectival syntagms in CORR).

CASS TACT Court Newspaper CORR UNIT

judgments articles
Non + N 49 17 66 43 17 26
Non + Adj 212 88 300 223 113 110
Non + Adv 30 19 49 23 18 5
Total 391 124 415 289 148 141

Table 7-3 “Non” preceding a noun, adjective or adverb in the Italian

corpus

Rovere (2005: 95) notes that the formation of negative abstract nouns
in legal texts may be achieved through prefixes or by adding “non”.5
Possibly, the frequent insertion of “non” before grammar classes other
than verbs leads to the overall impression of a greater frequency of
negatives in legal Italian than in everyday language.

agreement which was sought but not reached, whereas an “omessa denuncia” was
lawfully expected or even necessary, but has not taken place.
5
Rovere proposes a functional explanation of this trait: “il ricorso alla negazione
tramite prefisso rispecchia, almeno tendenzialmente, un grado superiore di
elaborazione concettuale. Quando, invece, predomina in contesti concettuali la
variante con non, il processo di lessicalizzazione terminologica risulta incompiuto”
(2005: 95), e.g. “inedificatorietà” vs. “non edificatorietà del suolo”.
 Multiple Negatives in Legal Language 153

Double and multiple negatives in Italian

There is no need to focus on the total figures of all the various negative
prefixes included in the corpus: rather, we shall dwell on their
combinations with “non”. To evaluate the frequency of syntactic structures
involving more than one negative unit, we have searched for text strings
containing “non” followed by another negative morphological marker
within a range of five graphic forms; this range has been increased to
seven to identify the co-occurrence of two “non” forms, e.g.: “non è
neppure pensabile un comportamento processuale di non contestazione”.
Of course we have excluded all the items reported in the section above
because, when preceded by “non”, their function is either reinforcing the
negative value of the clause (“mica”, “neppure”, “neanche”, “nemmeno”)
or adding other negative items (“neppure”, “neanche”, “nemmeno” as well
as “né”) or because, unlike other languages, double negatives comply with
standard grammar rules (“mai”, “niente”, “nulla”, “nessun*”). The results
of the automatic search conducted with “Taltac2” have been checked
manually to assess if and when double negatives can be replaced by an
affirmative construct (which, for example, is unviable in a clause like “il
danno non patrimoniale non sussiste”).
Tab. 7-4 illustrates the “raw” results of the automatic search for two
“non” forms co-occurring within a maximum range of seven graphic
forms. Also in this case, the press subcorpus has produced more results:

CASS TACT Court judgments Newspaper articles CORR UNIT

73 98 171 185 78 107

Table 7-4 Non lag7 non

Carrying out the manual survey is not an easy task since several
constructs are hard to classify. The unquestionable cases in which
replacing double negatives with an affirmative clause does not change the
overall meaning tend to envisage recurrent formulas such as [non + potere
+ non = dovere], e.g. “non può non convenirsi” or “non posso non
ricordare”, with possible variations (“in una scenografia che non riesci a
non immaginare ospedaliera”), producing 8 occurrences in the legal
subcorpus and 21 in the press subcorpus, along with the pattern [non vi è
chi non = tutti], e.g. “non vi è potenza regionale che non s’interroghi sul
futuro del mondo” (two occurrences in the court judgments and one in
newspaper articles).
154 Chapter Seven

In other cases, double negatives may be considered equivalent to

affirmative statements with “exclusive” meaning, for example in
conditional sentences (leading to a sort of modus tollens involving
structures such as [se non … allora non… = solo se… allora…], e.g. “non
troveremo mai la risposta se non riprenderemo il cammino” (especially in
court judgments, “qualora” provides a high-register alternative: “il
pagamento di una tassa non è ricevibile qualora non si correda [sic] da un
documento”). We have found seven occurrences in the newspaper articles
and three in the court judgments, whereas the “se non” connector occurs
five times in the latter texts with exclusive meaning: “non potevano essere
intese se non nel senso dell'estensione dell'originario accordo”. In those
clauses the function of double negatives is limiting the range of
application to specific cases and provides evidence of the dialogue-like
nature of the discourse of the court,6 aimed to deny or confirm the
allegations of the parties: meaningfully, sentences like “le presunzioni non
si applicano nei casi in cui non può aversi prova per testimoni” emerge in
particular in the CASS and TACT subcorpora. However, double negatives
often fail to be equivalent to affirmative constructs: for example, “non
avevano indicato le circostanze non considerate dal Tribunale” certainly
does not mean “avevano indicato solo le circostanze considerate dal
Tribunale”, and “non rileva il numero di udienze non tenute
ingiustificatamente” is not equivalent to “è rilevante solo il numero di
udienze effettivamente tenute”. These double negative constructs are also
present in Swiss judgments, in particular when introduced by [il fatto
di/che + non]: “il fatto di non avere formulato opposizione al sequestro
non aveva alcuna rilevanza”.
As noted before, the Italian Court of Cassation shows a marked
preference for the correlative conjunction “né”, whereas the press
subcorpus has recorded almost all the occurrences (partly present also in
TACT) of two “non” forms connected by “ma”, “o” and, above all, “e”
(“Gauthier non teorizza e non si abbandona alle parole”), often used for
stylistic reasons in figures of speech such as polyptoton (“non abbiamo
mai rubato e non ruberemo”), homeoteleuton (“non vorrà e non potrà
disattendere”) or strings of synonyms (“non possono e non sono più in
grado”). Also negative cleft sentences appear almost exclusively in the
press and may easily be replaced with affirmative sentences, but this
would entail the loss of their information focus (e.g. “non è che negli

6
“Dialogismo” is the label used in section 2.2. of Davide Mazzi’s study on
argumentation in court judgments (2008). Mention can also be made of the
disagreement formulas analysed by Santulli (2008: 3.3.) and Dell’Anna (2013:
2.4.2.).
 Multiple Negatives in Legal Language 155

ultimi decenni non ci siano stati attacchi scientifici”; sometimes the verb is
omitted: “non che non ce ne siano stati, ma non sono i più gravi”).
Tab. 7-5 illustrates the results of the search for strings including “non”
followed by a negative prefix at a maximum distance of 5 words, which
are more frequent in the legal subcorpus (the table only includes the
prefixes actually found in the corpus):

CASS TACT Court Newspaper CORR UNIT

judgments articles
dis- 4 4 8 6 4 2
in-/im/ill- 28 22 40 32 11 22
/irr-
a- 4 0 4 0 0 0
s- 0 5 5 2 1 1
mal- 0 3 3 3 0 3
Total 36 34 70 44 16 28

Table 7-5 Non lag5 negative prefix

In terms of part-of-speech distribution of grammar classes, verbs (past

and present participles, the former mostly used as adjectives, e.g. “non
disconosciuti”, “non inesistente”; infinitive forms are less frequent: “non
disdire”) and adjectives (“non invalido”) account for the vast majority of
occurrences. Adverbs are rare (“non ingiustificatamente”) and (mostly
abstract) nouns even rarer: “non evidenziando alcuna effettiva carenza o
illogicità”; it is worth noting that court judgments contain numerous
lemmas with negative prefixes expressing the judges’ opinions: “illogico,
illecito, illegittimo, iniquo, inammissibile, inconferente, invalido,
irragionevole”, etc.
The prefix "a-" only occurs in “anomalo” (which may be considered a
negative form only from the etymological viewpoint, even though it has no
immediate antonym), whereas compound words including “mal-”
(“malintesi, malanimo, malafede, maledetto, malposto, malnutriti”) have
been included in our survey for completeness’ sake even in the absence of
antonyms. Classification problems emerge also with other prefixes: for
example, the negative meaning of a word may be apparent but there is no
readily available affirmative alternative: “non risultano essere state
disattese”, “non indispensabile”. As noted before, in other cases (not
included in Tab. 7-5) double negatives are not equivalent to affirmative
constructs for a number of reasons: “non svantaggiati” does not mean
“avvantaggiati”, just like “non scoprirsi” cannot be replaced by “coprirsi”,
“non indifferente” by “differente”, etc.
156 Chapter Seven

Conclusively, sporadic cases of multiple negatives involve several

“non” forms in short text strings, but whether they can or cannot be
replaced with affirmative sentences depends on the length of the text
segments falling within the range of the negative construct: in “il fatto che
E non abbia mai firmato alcun documento bancario non significherebbe
che la stessa non abbia mai manifestato la volontà” the court rewords and
denies the plaintiff’s hypotheses (leading to dialogism, as mentioned
above) but no equivalent affirmative alternative is available. Rather than in
the overall figures, the difference between court judgments and newspaper
articles seems to lie in the syntactic environment hosting more than one
negative unit: while newspapers tend to distribute them among more co-
ordinate clauses (“chi non accende una lampada o non apre un rubinetto
non sa cosa farsene”), court judgments group different negatives in one
single complex sentence involving more subordinate clauses (“affermare
l'inammissibilità del motivo di impugnazione per non essere stati indicati i
fatti ed elementi non acquisiti per effetto della mancata audizione”). The
impression of the high frequency of (multiple) negatives in Italian legal
texts may be explained in terms of the greater variety of morphological
resources involved and their concentration in long compound sentences.

Multiple negatives in legal Spanish: state of the art

Multiple negatives have never been explicitly mentioned among the
features of legal Spanish (see Alcaraz Varó and Hughes 2002, Hernando
Cuadrado 2003, Samaniego 2004).
A first, important reference is made in the study carried out in 2011 by
the Comisión para la Modernización del Lenguaje Jurídico (CMLJ, 2011)
that – in one of its guidelines devoted to the simplification of legal
language and, more specifically, in the study dealing with oral judicial
language7 –underlines the importance of avoiding questions containing
double negatives as they are more difficult to understand compared to
affirmative questions (2011: 65). However, it is just a brief mention within
a wider context in which persuasive and oratorical techniques in use in
judicial proceedings are analysed and is not exhaustively scrutinised
among the morphological traits subject to simplification.
In Spanish (see Bosque 1980, Sánchez López 1999, González
Rodríguez 2009) negation can be obtained by means of three resources: a)
the adverb “no” preceding the verb; b) “negative words”, that is lexical
units that precede the verb making the sentence negative in its content

7
http://valesco.es/justicia/informes-modernizacion-del-lenguaje-juridico/
 Multiple Negatives in Legal Language 157

such as quantifiers (“nada”, “nadie”, “ninguno-a”), adverbs (“nunca”,

“jamás”, “tampoco”), prepositional phrases (“en mi/la vida”, “en todo el
día”, “en todo el país”, “en toda la ciudad”, “en absolute”, “en modo
alguno”, etc.), conjunctions (“ni”); c) negative prefixes including “des-”,
“a-”, “in-” (along with its allomorphs “im-” and “i-”), “anti-”, “contra-”,
etc.
As pointed out by González Rodríguez (2009: 44-45), morphological
negation does not necessarily imply semantic negation. Lexical negation
realised through a negative prefix and clausal negation realised through the
insertion of “no” or a negative element do have a different semantic value.
In a sentence like “Nacho está desmotivado”, lexical negation signals that
the mood of the subject is opposed to the mood of “motivation”; in
“Nacho no está motivado”, instead, the clause negation implies the
absence of the feeling expressed by “motivated”, but we cannot deduce
that the predicative subject is actually unmotivated.
Basically, lexical negation expresses opposition or antithesis whereas
clause negation expresses absence or shortage. When both negations occur
in the same sentence (“Nacho no está desmotivado”) the effect is a litotes
whose result is an affirmative interpretation of the construction: “Nacho
está motivado”.
It is worth mentioning that, as noted in Italian and English, negative
prefixes in Spanish do not necessarily carry negation (e.g. “imprescindible”,
“imparcialidad”, “inobjetable”, “inequivocable”, “incuestionable”,
“indudable”, etc.).
In line with the methodology adopted to extract quantitative data from
the Italian corpora, in the classification of the negative elements we did
not take into account negations realised by means of “alguno/a” as well as
categories which Sánchez López (in Bosque 1999: 2604) defines
“inductores negativos”: predicates introduced by verbs having an
exclusive or restrictive meaning or expressing doubt (“dudar”, “ser
dudoso”), opposition (“resistir”, “rehusar”, “rechazar”, “negar”,
“oponerse”, “prohibir”, “impedir”, “ser contrario”, “ser opuesto”),
deprivation, shortage or absence (“quitar”, “irse”, “perder”, “<falta de +
noun group>”), as well as certain emotionally negative elements (“ser:
“horrible”, “estúpido”, “sorprendente”; “molestar”, “indignar”, etc.),
rhetorical interrogatives and exclamations, quantifiers (“poco(s)”, “solo”,
“raramente”, “escasamente”, “demasiado”), prepositions and conjunctions
(“sin”, “en lugar de”, “en vez de”, etc.), comparative constructions,
superlatives and certain ordinals.
158 Chapter Seven

Spanish corpus building

The quantitative analysis has been conducted on a Spanish legal corpus
similar in size to the Italian and English subcorpora. In particular, it is
made of 29 judgments delivered by the Spanish Supreme Court (Tribunal
Supremo) between 2005 and 2012, totally 280,089 tokens. The judgments,
have been extracted from the Corpus of Criminal Judgments (COSPE, see
Pontrandolfo 2013) and deal with criminal cases. The control corpus is
made of 66 recent articles and editorials (2014) extracted from the Spanish
newspaper El País (282,696 tokens). The two subcorpora have been
queried by means of two programmes: WordSmith Tools (v. 5.0),
developed by Mike Scott (2008), and AntConc (v. 3.2.4) developed by
Lawrence Anthony (www.laurenceanthony.net/index.html).

Quantitative analysis of negatives in Spanish

As for Italian, we calculated the presence of negation in the two
subcorpora. Tab. 7-6 summarises the frequency of the elements that contribute
to negation in the legal corpus (CorTS) and the control corpus (CorEP).

CorTS CorEP
No 2,182 1,560
nada 79 50
nadie 23 44
ning* 138 93
nunca 22 48
jamás 2 8
tampoco 108 30
en [mi/la] vida, en todo el día… 0 17
en absoluto, en modo alguno 9 1
ni 301 172
Total 2,864 2,023
des-: 332 112
a- 0 0
in- 273 65
im- 149 33
ir-: 69 50
il-: 216 27
anti-: 15 21
contra-: 134 0
Total 1,188 308

Table 7-6 Negatives in the Spanish corpus

 Multiple Negatives in Legal Language 159

The data obtained from the Spanish subcorpora are in clear contrast
with those obtained from the Italian ones: as can be seen in Tab. 7-6,
negation is much more frequent in the legal subcorpus than in the
newspaper subcorpus. The only elements which appear with a relatively
higher frequency in newspapers are “nadie” and “jamás”, as well as the
phrases “en [mi/la] vida”, “en todo el día”, etc., whose absence in the
judgments is understandable, as such elements belong to a low register. As
far as prefixes are concerned, the only element that has a higher frequency
in CorEP is “anti-”, whereas all the others appear with a much higher
frequency in legal texts. The frequency of negative prefixes in CorTS is
indeed three times higher than that of newspapers. More marked
differences emerge in the case of the prefix “in-” with its allomorphs, as
can be seen in the following (not exhaustive) list of negative adjectives
found in CorTS and absent or present with a very low frequency in CorEP:

in-: “insuficien*”, “insosten*”, “indebid*”, “inaplica*”, “incompat*”,

“inviola*”, “indefens*”, “inadmisib*”, “incompl*”, “inobserv*”,
“ininteligible”, “insubsana*”, etc.
im-: “imposib”*, “impruden*”, “impago”, “impe/id*”, “impertine*”,
“impuni*”, etc.
ir-: “irrelevante”, “irretroactividad”, “irrazonable”, “irreflexivo”,
“irregular”, “irracional”, etc.
il-: “ilegal”, “ilícito”, “ilegítimo”, “ilícito”, etc.

Obviously, the mere presence of negative elements or single negation

in the subcorpora under investigation does not allow us to make
considerations on double or multiple negatives, which will be analysed in
the next section.

Double and multiple negatives in Spanish

We used the subcorpora as testbeds to check the frequency of
constructs containing more than one negative element by looking for
strings in which “no” was followed by additional negative
morphosyntactic items that have not been considered. Cases in which “no”
co-occurred with negative lexical elements or marked as semantically
negative (e.g. “el resto de los reproches […] “no” provocan la “nulidad”
del acto”, which, as in the case of Italian, do not correspond to “los
reproches provocan la “validez” del acto”).
Tab. 7-7 summarises the raw quantitative results obtained from the
subcorpora under study.
160 Chapter Seven

CorTS CorEP
38 11

Table 7-7 No lag7 no

As Tab. 7-7 shows, also in this case, the legal subcorpus produces a
greater number of co-occurrences of two “no” in a lag of 7 units than the
newspapers.
A more detailed analysis of the contexts show that in the press articles
double negatives are mainly used as rhetorical figures (e.g. litotes) or as
hedgers to soften some statements8, whereas in the legal corpus we find
complex syntactical structures which would require simplification. Below,
two examples extracted from two judgments of the “Tribunal Supremo”:
TS 752/2011 and TS 1279/2011:

De modo que no puede decirse que no ha adoptado la entidad descontante

las medidas de diligencia y autoprotección a las que venía obligada en el
tráfico mercantil por no realizar una minuciosa comprobación del
contenido de los efectos cambiarios que descontaba.

El recurrente no lo hizo en momento procesal hábil para no ocasionar

indefensión.

The first example contains three “no” in a single period, whose content
is consequently difficult to grasp, whereas in the second example two “no”
are followed by a noun with a negative prefix (“indefensión”), which
makes the sentence unnecessarily convoluted.
Tab. 7-8 summarises the frequency of co-occurrences of “no” followed
by a noun with a negative prefix. Results point to a higher frequency in the
legal subcorpus:

8
Perhaps the only example of double negatives which can be reformulated is the
following one: “Una reforma necesaria, porque la economía española no puede
permitirse que el crédito no fluya con normalidad a las empresas y familias”,
where an affirmative paraphrasis would have been equally correct (e.g. “porque
para la economía española el crédito tiene que fluir con normalidad/es importante
que el crédito fluya con normalidad”).
 Multiple Negatives in Legal Language 161

NO + CorTS CorEP
des-: 13 4
in-/ im-/ ir-/ il- 32 1
anti-: 1 -
contra-: - -
Total 46 5

Table 7-8 No lag5 + element with negative prefix

The most frequent categories used with negatives prefixes in

combination with “no” are adjectives (“no ilícito”, “no incompatible”, “no
indebido”, etc.) and nouns (“no indefensión”, “no desconexión”, etc.),
followed by verbs (“no desvirtuar”, “no desestimar”, “no desconocer”,
etc.). Also in Spanish, as in the case of Italian, most of the nouns are
related to the legal reasoning of the court: “irrazonable”, “desacertado”,
“irrelevante”, “incoherente”, “ilícito”, “incompatible”,
“desproporcionado”, “insuficiente”, “irreflexivo”, etc. Below, one
example extracted from judgment TS 66/2011:

Que omita referirse a dos manifestaciones testificales no deja la

argumentación debilitada. Ni implica indebido menosprecio de la prueba
de descargo, en la medida que lo dicho por dichos testigos no es en
absoluto “incompatible” con la conclusión asumida.

The accumulation of negatives poses serious problems of

interpretation. If we leave aside the intrinsically negative nouns (“omitir”,
“menosprecio”, “debilitada”, “descargo”), which have been excluded from
the analysis, we note the use of “no” followed by adjectives with negative
prefixes (“indebido” and “incompatible”).
A more coherent and less convoluted version of the same paragraph
could be the following one:

Omitir la referencia a las dos manifestaciones testificales en la sentencia

recurrida no repercute en la validez de la argumentación (debilitada
[neg]>validez [pos]) de los jueces. Además, dicha omisión no afecta la
prueba de descargo, que es debidamente considerada (adjetivo + sustantivo
[neg]>adverbio + verbo [pos] + complemento del nombre>relativa) por
parte de los jueces ‘a quo’, en la medida que las declaraciones de los
testigos antes mencionados son totalmente compatibles (3 negations:
no+en absoluto + incompatible [neg]>totalmente compatibles [pos]) con la
conclusión asumida.
162 Chapter Seven

As underlined in the case of Italian, not all the negative sentences can
be changed into positive ones, so the high frequency of negation in the text
is somehow inevitable, especially in the cases of polyphony and dialogism,
which are typical of judicial language (See Mazzi 2007, Garzone and
Degano 2012).
A sentence like “No existió imprudencia grave” (TS, 405/2012) cannot
be reformulated as “Existió prudencia” since the court is referring –
intertextually – to the decision of the lower-court judges (“En el desarrollo
del motivo trata de justificar que en el peor de los casos los hechos deben
calificarse de imprudencia grave”), whose argumentation and evaluation
are ultimately rejected by the court of last instance. The same applies to
“En consecuencia, si la prueba de cargo existe, no puede ser tachada de
ilícita” (TS, 902/2010): the judge is quoting the words of the contested
judgment, although – from a semantic viewpoint – the conclusion reached
is: “la prueba es lícita”.

Multiple negatives in legal English: state of the art

As far as English is concerned, multiple negatives have been
traditionally mentioned in legal language studies (see, among others,
Mellinkoff 1963, Solan 1993, Tiersma 1999, Mattila 2013), although
never extensively analysed, and have been one of major targets of the
plain language movement in Australia (Federal Plain Language Guidelines
March 2011; http://www.plainlanguage.gov/index.cfm), America (Flesch
1979; Wydick 2005; Charrow et al. 2013), Great Britain (Garner 2013)
and, recently, in the European Union (Agerbeek, 2013: The Essential
Guide to Drafting Commission Documents on EU Competition Law;
European Commission, How to write clearly).
As a matter of fact, multiple negatives generate ambiguity and increase
the syntactic complexity of the sentences by forcing the reader to carry out
“a mental switch from no to yes” (Flesch 1979). Tab. 7-9 provides some
examples of syntactic changes aimed at simplifying legal language:

Don’t say Say

No approval of any noise You must get the agency’s express
compatibility program, or any portion approval for any noise compatibility
of a program, may be implied in the program or any portion of a program.
absence of the agency’s express
approval.
 Multiple Negatives in Legal Language 163

Change the double negative To a positive

no fewer than … at least
has not yet attained is under
may not … until may only … when
is not … unless is … only if

It cannot be excluded that, if it were The inspectors possibly would have

not for the undertaking’s decision not found inculpatory evidence if the
to cooperate, the inspectors would not undertaking had cooperated.
have been unable to find inculpatory
evidence.

Table 7-9 Say and Don’t Say9

In the last example, the intelligibility of the sentences is seriously

hindered by four “not” which add up to the negative verb “exclude” and
the negative adjective “unable”.
Negation in English can be realised through different categories (see
Quirk et al. 1985: 798-799; Huddleston and Pullum 2002: 843-849), listed
in Tab. 7-10: determiners (“no”, “neither”), pronouns (“none”, “neither”,
“nothing”, “nobody”, “no one”), process adverbs (“in no way”), place
adverbs (“nowhere”, “no place”), time adverbs (“never”, “no more”, “no
longer”), degree adverbials (“no”, “none the”), etc. We did not take into
account those “adverbs and determiners which are negative in meaning but
not in form” (Quirk et al. 1985: 780,) such as “seldom, rarely, scarcely,
hardly, barely, little, few” together with lexical negations and verbs
expressing missing actions (overlook, ignore, rule out, set aside, etc.).

English corpus building

The quantitative analysis has been conducted on a corpus of legal
English similar in size to the Italian and Spanish corpora. More
specifically, the legal subcorpus contains 21 judgments delivered by the
House of Lords and by the Supreme Court of the United Kingdom
between 2009 and 2012 (278, 421 tokens). As for Spanish, the judgments,
which have been extracted from the Corpus of Criminal Judgments

9
The first examples are taken from:
www.plainlanguage.gov/howto/guidelines/FederalPLGuidelines/writeNo2Negs.cf
whereas the last one is extracted from The essential guide to drafting Commission
documents on EU competition law:
https://dl.dropboxusercontent.com/u/40336805/The%20Essential%20Guide.pdf
164 Chapter Seven

(COSPE, see Pontrandolfo 2013), deal with criminal cases. The control
corpus is made of 60 recent articles and editorials (2014) extracted by the
British newspaper “The Guardian” (276,817 tokens). Software analysis
has been carried out by means of WordSmith Tools and AntConc.

Quantitative analysis of negatives in English

Tab. 10 summarises the frequency of negative elements in the legal
subcorpus (CorSC) and in the control one (CorTG).

CorSC CorTG
no 763 276
*not10 2,364 1,044
n’t 0 0
neither / nor 99 41
none 37 12
nothing 77 26
nobody 5 2
no one 16 13
never 51 32
nowhere 4 9
no more/longer 51 26
(in no way) 7 0
by any means 1 0
in any way 10 0
in the slightest 0 0
at all 38 14
Total 3,530 1,495
a- 0 0
de- 0 0
dis- 57 63
un- 514 541
in- 179 37
im- 68 8
ir- 48 14
il- 43 19
anti- 1 42
non- 48 76
Total 958 800

Table 7-10 Negatives in the English corpus

10
Thus we also find the occurrences of “cannot” (see note 9 above).
 Multiple Negatives in Legal Language 165

As can be seen in Tab. 7-10 and in line with the quantitative results
obtained from the Spanish subcorpora, negations are much more frequent
in the legal corpus than in the newspaper one. The only elements which
appear with a slightly higher frequency in newspapers are “nowhere” and
the prefixes “dis-”, “un-”, “anti-”, “non-”.

Double and multiple negatives in English

We applied the same methodology adopted for Spanish and Italian and
looked for strings containing more than one negative element (“*not”
followed by an additional negative morphosyntactic element). Co-
occurrences of “*not” with negative items or elements with a negative
meaning have been excluded from the analysis (e.g. “prosecution was not
precluded or restricted by the terms of the relevant statute”).
Tab. 7-11 summarises the quantitative results obtained from the two
subcorpora under study.

CorTS CorEP
19 4

Table 7-11 Not lag7 not

Also in this case, the legal subcorpus produces a greater number of co-
occurrences. From a strict quantitative viewpoint, the total number (19) is
lower than that of Spanish (38) and Italian (73 and 98). Below two
examples from the subcorpus:

It was not suggested in argument that […] the determination of the first
complaint is not an absolute bar to the second complaint. (SC 1/2011)

The mere fact that the assumptions are not applicable does not mean that
the defendant has not benefited from drug trafficking. (SC 1/2011)

Both cases refer to the judges’ legal reasoning, signalled by the

presence of interpretative verbs of thought/opinion such as “suggest” and
“mean”. The use of double negatives in such contexts seems to be
triggered by argumentative needs.
If we look at the combinations of “*not” followed by elements with
negative prefixes (lag5), the results of the subcorpora interrogation point
to a higher frequency in the legal subcorpus (see Tab. 7-12).
166 Chapter Seven

NOT+ CorSC CorTG

dis- 3 6
un- 12 10
in-/im-/ir-/il- 19 -
anti- - -
non- - -
Total 34 16

Table 7-12 *not lag5 + element with negative prefix

The elements to which negative prefixes are most frequently attached

are adjectives (“unlimited”, “inappropriate”, “unrestricted”,
“inconceivable”, “unintended”, “unlawful”, “impossible”, etc.), followed
by verbs (“disagree”, “invalidate”, etc.), adverbs (“unequivocally”,
“unlikely”, “unreasonably”, etc.) and, with a very low percentage, nouns
(“disagreement”, “impossibility”, etc.). As far as the newspaper subcorpus
is concerned, most of the double negatives can be explained in terms of
rhetorical effects (e.g. “not entirely blameless”, “not without…”) or
euphemistic reasons (e.g. “not a bad place to start with”).
The legal subcorpus, instead, shows structures and combinations which
are typical of judicial texts. The Supreme Court judges often use double
negatives for hedging reasons or politeness (e.g. “It is not unlikely that…”,
“At a theoretical level, I do not disagree”, etc.) owing to the already
mentioned dialogism (“It cannot be said to be disproportionate”, “I cannot
agree with Lord Mance (para 262) that this does not undermine the force
of the assurances”, “Viewed in this way, Part 5 of the Act is not
inconsistent with and does not contravene the sovereignty principle”,
“That fact alone did not mean that the public prosecutor was not
independent”).

Conclusions
Are multiple negatives a distinctive trait of legal language? The results
described above seem to confirm – at least partly –the presence of this
syntactic feature, which has traditionally been mentioned by researchers
but has never been analysed with quantitative methods, in particular in
comparison with other language registers. The data obtained from the
survey of our legal and control subcorpora in the three languages under
scrutiny show that the English and Spanish texts make a more frequent use
of negatives in general and of multiple negatives in court judgments than
in newspaper articles in particular. In contrast, the Italian corpus seems to
behave differently: negative items are more numerous in “Il Corriere della
 Multiple Negatives in Legal Language 167

Sera” and “l’Unità” than in Italian and Swiss court judgments, even
though the frequency of “non” before nouns, adjectives, adverbs and
negative prefixes is greater in the legal texts.
However, it should be stressed that, regardless of the language,
constructs involving more items classified as negatives from a strictly
morphological viewpoint never add up to a significant share of the
subcorpora. For example, in the three legal subcorpora including
approximately 270,000 occurrences, the combinations of “non/no/not” and
negative prefixes appear only 36/34 times in Italian, 39 in Spanish and 34
in English: their frequency is undeniably very low. Furthermore, from a
quantitative viewpoint, our study stresses the difficulties emerging in the
very definition of “multiple negatives”, with the ensuing problems in the
identification of semantically equivalent affirmative constructs. A
thorough analysis of the syntactic environment in which double and
multiple negatives emerge shows that such constructs are not easily
replaced because they are justified from a rhetorical viewpoint in the light
of the overall organisation of the discourse of the court. Dialogism is one
of the main features of the genre that goes under the name of “judgment”:
when negatives are used as functional resources rather than stylistic
clichés, their full or partial elimination for simplification purposes appears
problematic.
Finally, it should be noted that our research has only considered double
and multiple negatives that are made explicit through the use of
morphological markers, while the combination of those markers with
lexical items having a negative meaning has been overlooked. The case
may be that, following a reliable classification of negative lexical items,
the data produced by an ad-hoc quantitative analysis may confirm (in
English and Spanish) or contradict (in Italian) our conclusions on the
frequency and distribution of negatives in legal texts.

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 CHAPTER EIGHT

ARGUMENTATIVE STRATEGIES
IN THE JUDGMENTS OF THE EUROPEAN
COURT OF JUSTICE:
CONNECTORS IN FRENCH AND ENGLISH

SILVIA CAVALIERI AND CHIARA PREITE

Introduction
The argumentative nature of judicial texts has been pointed out by
various authors (see, inter alia, Perelman 1980; Aarnio 1989; Alexy 1989;
Peczenik 1989; Feteris 2002, 2012; Klatt 2008). Nevertheless, in spite of
the widely recognized role of argumentation in judicial texts, the
importance of language in the construction of argumentation in judicial
settings has been underestimated especially when considering the EU legal
context. For instance, Aarnio (1989) provides a detailed overview of the
standards of reasoning followed by courts and the importance of linguistic
factors affecting the interpretation of the legal text, but with no examples
of actual, attested occurrences. Similarly, Peczenik (1989) and Alexy
(1989) see jurisprudence as part of a theory about legal dogmatics and
legal decision-making leaving aside the linguistic counterpart of the
matter.
In recent times, Feteris (2002) proposed an exemplary analysis of
pragmatic argumentation, by analysing a judgment issued by the Dutch
Supreme Court. However, Feteris still perceives argumentation in terms of
a complex reasoning process. As a result, she does not focus upon the
linguistic constituents of the argumentative discourse she takes into
consideration.
Greater attention to the linguistic aspects of argumentation has been
paid by Anscombre and Ducrot (1983), Plantin (1990, 1996), Mazzi (2005,
2007) and Feteris (2012). Anscombre and Ducrot (1983) uphold the view
172 Chapter Eight

of the radical argumentativity of language, and they maintain that in order

to express the argumentative force of statements, languages avail
themselves of “operators” such as mais [but], au moins [at least], etc. for
French. Plantin (1990, 1996) is also concerned with argumentation in
language. More generally, one of the reasons why his research is of great
significance is that he also works on texts, in order to investigate how
argumentative discourse takes shape. Mazzi (2005, 2007) focuses on the
English language highlighting the importance of combining a genre and a
corpus perspective in the construction of argumentation in judicial texts.
His studies further the analysis on the link between linguistic theories of
argumentation and the use of argumentation in specialised domains like
legal discourse.
In the light of the fruitfulness of linguistic studies on argumentation
such as those mentioned, this chapter is aimed at providing new insights in
the description of the linguistic component of argumentation in legal
discourse, by presenting results of a comparative analysis of argumentative
connectives in the judgments of the European Court of Justice (CJEU)
issued in French and translated into English. As French is the procedural
language, our objective is to discuss whether and to what extent translators
respect the type of reasoning typical of French legal system by making
recourse to one-to-one equivalence or, conversely, prefer to adapt the
translation to a more international style by using devices such as one-to-
many equivalence, or reduction (Malone 1988).
Specifically, the research questions addressed in our work are: 1) what
is the influence of Court French style on CJEU judgments as far as legal
argumentation is concerned? 2) Do the English translations of CJEU
issued in French follow French traditional legal reasoning characterised by
a high frequent of connectives? 3) What are the translations offered in
English of the most used connectors in French CJEU judgments?
To identify the items to be analysed, Stati’s work on connectives
(2002: 63), as well as Ducrot’s work, proved a useful reference for the
present research. Stati argues the importance of expressions which, as
single wordforms, phrases or even clauses, serve the purpose of indicating
the argumentative properties of text propositions and the relationship
between propositions provided with an argumentative role. Connectives
belong to these categories and Stati labels them lessico ausiliare
dell’argomentazione [auxiliary argumentative lexis]. Ducrot (1980), on the
other hand, calls them mots du discours [words of discourse
(metadiscourse)] since they help to organize the text coherently, while
assisting the addressee in reconstructing the logico-argumentative
development of the text as it unfolds.
 Strategies in the Judgments of the European Court of Justice 173

Once a set of specific elements was identified, their analysis was

facilitated by the interplay of qualitative analysis and corpus linguistics
tools (Sinclair 1991, Biber et al. 1998, 2007 and Stubbs 2001); more
specifically, a study of concordances and collocations in which the
selected linguistic elements are found, in combination with qualitative text
analysis, gave us insights as to their function at the level of text and
argumentative voice.
As far as the organization of the study is concerned, in the first section
the materials and methods used for the analysis will be described and the
theoretical background of the analysis will be detailed in order to
thoroughly explain the rationale of our analysis. In the subsequent
sections, results deriving from our analysis based on an in-depth
observation of corpus data will be presented. In the final section, results
will be discussed and conclusions will be drawn in the light of the
previous analysis.

Methods and materials

The analysis was carried out on two parallel corpora of judgments
delivered by the European Court of Justice (CJEU) in the years 2008-
2013. On the one hand, the first corpus consists of the original version of
the judgments in which French is the procedural language (CJEU_Fr); on
the other hand, the second one consists of their English translations
(CJEU_En). Each corpus amounts to 71 texts (487,165 tokens for the
CJEU_Fr corpus and 435,343 tokens for the CJEU_En corpus). The two
corpora were designed according to two basic criteria: first of all, only
closed cases were chosen; secondly, the corpus only includes 20
judgments per year where possible since for the years 2010, 2011 and
2013 were found only 5, 3 and 7 judgments respectively.
As stated by MacCormick (1978: 168), a decision of French Cour de
Cassation (and this remains true for CJEU judgments too)

[…] presents itself as a terse, impersonal series of sentences, which seem

to drive a conclusion deductively from an article of one of the codes taken
together with the findings of fact established by the trial court. The motifs
are the motifs of the whole Court, not individually ascribed to any of its
members. The process is one of authentic and authoritative interpretation
the specific conclusion appears to follow by simple deductive inference
when we add the established facts as minor premise. […] the decision of
the House of Lords is not terse but rambling; is not impersonal and
collective but idiosyncratic and individualistic; the conclusions reached by
the majority of the judges is indeed the decision of the House, but the
174 Chapter Eight

motifs, the justifying reasons for the conclusion, may be as various as the
personalities of the judges participating.

As it is clearly stated in MacCormick’s quotation, there is a difference

between the structures of judgments in the French and in the British legal
traditions, which is probably due to the presence of rival reasoning and
need of persuasion in British judgments, while in French judgments judges
must conceal any internal debate. As a consequence of this substantial
difference, MacCormick suggests that the argumentative style of Common
Law judges is closer to that of advocates rather than to that of European
Court of Justice judges.
Although British judgments should be traditionally structured in a
different way, the parallel English CJEU texts show a standardized
structure which follows the subdivision into sections and sub-sections
typical of Court French style. This guarantees uniform quotation, easy
comparison with the authentic text, and transfer of the legal effects within
a multilingual legal communication (McAuliffe 2011). As French Court
texts are characterised by a high frequency of connectives structuring the
logical path followed by judges to come up with a verdict, it seems useful
to test our claims on a possible influence of the French language on the use
of connectives in the English translations. We also compared the
CJEU_En corpus to a reference corpus of 41 judgments delivered by the
House of Lords (UK) (HoL corpus) collected from 1985 to 20031 (461,865
tokens).
As far as methodology is concerned, we relied on the integration of
discourse and corpus analysis tools. For the discourse part, our theoretical
framework took into account the tenets of Perelman’s Logique juridique
([legal logic]1979), as well as the idea introduced by Anscombre and
Ducrot (1983) that argumentation is not only a discursive strategy
(working at the level of parole2), but also a linguistic feature which works
at langue level. As regards current classifications of connectives that
might be relevant to our purposes, different typologies have been proposed
within a number of frameworks, based on semantic, syntactic or pragmatic
criteria (cf. among others Rubattel 1982; Berrendonner 1983; Roulet 1987;
Nolke 1990; Van Raemdonck 1998; Adam 1999; Stati 2002). Specifically,
we focused on connectives belonging to the “auxiliary argumentative
lexis” (Stati 2002), i.e. textual metadiscourse, that help to organize the text
coherently, while assisting the addressee in reconstructing the logico-
argumentative development of the text itself. For this reason, we decided

1
We thank prof. Giuliana Elena Garzone for allowing us to use this corpus.
2
In Saussure’s (1916) terms.
 Strategies in the Judgments of the European Court of Justice 175

to adopt Riegel, Pellat and Rioul’s classification as presented in their

Grammaire méthodique du français (1999: 618-623). This categorization
is based on pragmatic criteria, e.g. the illocutionary functions of the items
in context, and takes into account the textual level, beyond the
phraseological dimension. Considering what we have stated above, we
used this classification through the lens of Anscombre and Ducrot’s theory
(1983), to highlight how the linguistic meaning inscribed in a form convey
to the text a particular pragmatic value/force.
Riegel, Pellat and Rioul put forth 5 categories of connectives:
“temporal” “spatial”, “enumerative”, “reformulating” and “argumentative”.
The last category – which is particularly relevant for our purposes – is sub-
divided into four sub-classes following the unfolding of reasoning:
“opposition/concession”, “explanation/justification”, “complementation”
and “conclusion”.
We are interested in fleshing out how connectives reveal the
argumentativity of the text, how they are used to mark explicitly the
judge’s aims within the specific argument that the judge is developing. As
already mentioned, we consider that the connectives used by the judges are
not mere rhetoric decorations: they signal argumentation and allow
identifying the logic operations undergoing the reasoning and, within
argumentation, they take on different pragmatic roles in compliance with
their semantic value.
To support this classification, the corpus analysis tools (i.e. Wordsmith
Tools 5 [Scott 2008]) assisted us in the selection of the potential items by
looking at the wordlists of the two corpora and in the observation of those
items in the specific context by studying concordances and collocations. A
last useful tool was keywords in order to compare the connectives found in
in the CJEU_En corpus wordlist to those found in the HoL reference
corpus one.
In the following sections the theoretical framework is further detailed.

Appreciation, argumentation and logique juridique [legal logic]

As we have already mentioned in the previous section, our theoretical
framework took into account not only Riegel, Pellat and Rioul’s (1999)
classification of connectives, but also Anscombre and Ducrot’s (1983)
theory of linguistic argumentation (see the section below for a discussion)
and Perelman’s view of argumentation and Logique juridique ([legal
logic]1979) in order to show why the judge’s make an extensive use of
cohesive devices to tighten the linguistic structure of their texts and thus to
strengthen the coherence of their appreciation.
176 Chapter Eight

In Le champ de l’argumentation (1970: 123-138), Perelman claims that

legal logic must not be considered in terms of formal logic. In fact, legal
logic is rather the type of argumentation grounded on dialectic and non-
binding proofs, aiming at persuading an audience (a fundamental notion in
Perelman’s theory, that in our case is very heterogeneous and universal,
comprising the parties of the controversy, their legal representatives, other
professionals trained in the law, political bodies, and the society at large).
Dialectic proofs allow every kind of argumentation and its opposite:
judge’s authority (as expressed in the decision, which is binding for the
parties involved in the proceeding) is guaranteed by the fact that the judge,
the parties and the audience belong to the same legal system (which stands
for the classical endoxa, or outstanding shared opinions).
The judges justify their “appreciation” (cf. Danon-Boileau 1976) by
showing that it relies on solid grounds and by making recourse to a shared
set of laws and previous judgments. This appreciation is made by the
application of two techniques, peculiar to legal logic: the traditional
technique of deciding with reference to judicial precedents and the
subsumption of a case under a more generic rule, which is also called
qualification (“a process through which a set of facts is said to correspond
to a category of legal discourse”, see Blanchard 1992). By appreciation,
we mean that legal logic is not infallible and the conclusions of an
argumentation are not demonstrable in a formal way. Perelman argues
that, although Court decisions are based on legal logic and argumentation,
they remain personal decisions:

It is to the judge’s convictions that we refer for questions of fact; it is to his

judgment that we appeal for questions of characterisation, it is his legal
knowledge and his sense of equity that will settle legal questions. It is he
whom the parties must convince; it is he to whom the lawyer’s indictment
and pleadings are addressed. (Perelman 1980: 129)

Judges, therefore, make an extensive use of cohesive devices to

strengthen the coherence of their reasoning, and this is the reason why we
are interested in the use of connectives as means to penetrate the
argumentative scheme by identifying the activities undergoing the mental
processes followed by the judges while motivating their decisions.
If we take into account the judgments rendered by the Court of Justice
of the European Union (CJEU), first of all we notice that their form owes a
lot to the French tradition. As a matter of fact, the structure of CJEU
judgments strictly follows the rules settled in France during the 70s, which
have been fully illustrated by Schroeder (1978), namely that every
judgment is divided into en-tête (heading) and corps du jugement which is
 Strategies in the Judgments of the European Court of Justice 177

in its turn subdivided into exposé du litige (procedural history, parties’

position), motifs (reasons, discussion), and dispositif (decision with the
dispositions). Moreover, the abolition of the French “unique sentence”, the
limitation of the attendus (the considerings) to the motifs, and their
elimination as far as CJEU judgments are concerned, have enhanced a
massive use of connectives and discourse markers while reasoning, in
order to guarantee both coherence and cohesion to the texts.
Thus connectives appear to be essential cohesive tools not only in
French Cour de Cassation (as already pointed out e.g. by Cabasino 1986,
1987), but also in the European Court of Justice argumentation (cf. Preite
2005).

Argumentation at a langue level

As might be expected, the presence and interplay of connectives in
legal language have a rhetorical function as well as a semantic relevance
from a pragmatic point of view. In fact, connectives can play different
roles depending on the goals of the argumentation. Indeed, judges organise
their reasons (motifs) in order to pursue their purposes in their judgments.
As a consequence, connectives are essential in argumentation since they
render explicit the implicit mental operations performed by the judges and
establish different levels of strength among arguments.
It is worth noticing, in this respect, that Anscombre and Ducrot (1983: 8)
formulated their argumentation theory on the basis of an integration of
pragmatics and semantics. In their view,

Un locuteur fait une argumentation lorsqu’il présente un énoncé E1 (ou un

ensemble d’énoncés) comme destiné à en faire admettre un autre (ou un
ensemble d’autres) E2. […] il y a dans la langue des contraintes régissant
cette présentation.

Thus, the argumentative chain depends on the linguistic structure and

is determined by a specific illocutionary act (“l’acte d’argumenter”, cf.
Ducrot 1982), ruling inter-subjective relationships and aiming at
producing a perlocutionary act on the addressee. This involves the
presence of “contraintes spécifiques de certaines conjonctions, indiquant
ce qu’elles peuvent, ou ne peuvent pas, lier […] n’importe quelle
expression ne peut pas être utilisée en faveur de n’importe quelle
conclusion” (Anscombre and Ducrot 1983: 20).
Likewise, Adam (1999: 58-59) claims that:
178 Chapter Eight

les connecteurs orientent argumentativement la chaîne verbale en

déclenchant un retraitement d’un contenu propositionnel […], soit comme
un argument, soit comme une conclusion, soit comme un argument chargé
d’étayer ou de renforcer une inférence ou encore comme un contre-
argument.

Connectives can support the logical development of the text, in order

to guide addressees towards a conclusion and to obtain their agreement
with the thesis developed by the argumentation. In doing so, they
explicitate the relationship existing among a set of ideas expressed in the
text. As a consequence, the connectives chosen by the addresser impose an
inferential effort on the argumentative framework of the addressees,
because their meaning (sens) depends on the “instructions” that are
contained in the meaning (signification) of the mots du discours, that must
be followed to get the right interpretation of the starting utterance. The
right interpretation of the meaning (sens) is authorized by a set of shared
beliefs – the endoxa or the legal system – originating topoï. Likewise,
Plantin (1996) agrees with the fact that the connectives used in
argumentation are not only subject to semantic and syntactic rules, but also
serve an argumentative (i.e. pragmatic) orientation:

Un connecteur est un mot de liaison et d’orientation qui articule les

informations d’un texte. Il met notamment l’information du texte au
service de l’intention argumentative globale de celui-ci. (Plantin 1996: 68)

The next section will focus on the analysis of a set of representative

items that appear to be especially significant for their frequency and/or
argumentative value/force assumed within judicial discourse.

Analysis
As far as our analysis is concerned, it is important to point out that the
presence of connectives is less common in traditional Anglo-Saxon judicial
decisions, but it is a massive feature of French judgments. A first
observation of corpus data by means of Wordsmith’s Wordlist, however,
showed that argumentative connectives appear to be most prominent in
CJEU judgments in French, that are rich in connectives as expected, but the
English translations show a good number of connectives too, which is
probably due to the influence of the “Court French” on the English versions.
Contrary to expectations, though, they are not systematically translated.
As already mentioned in the previous section, we decided to deal with
argumentative connectives (Riegel, Pellat and Rioul 1999) and specifically
 Strategies in the Judgments of the European Court of Justice 179

on connectives of: 1) opposition/concession, 2) explanation/justification, 3)

complementation, and 4) conclusion. This category proved to be peculiar to
legal language and very frequent in judgments. Browsing through the
wordlist displaying every word of the two corpora according to its frequency,
the ten most widely used connectives in the CJEU_Fr corpus were chosen
and the analysis concentrated on their meaning and function in the parallel
CJEU_En corpus in order to discuss whether the English versions maintain
the presence and the frequency of these connectives, showing therefore the
influence of the “Court French” rather than the preservation of the traditional
Common Law features, and to what extent translators make recourse to one-
to-one equivalence or, conversely, one-to-many equivalence.
In the next sections each category is further explained by reporting its
statistical significance in the corpora and examples of translation.

Connectives of opposition / concession

Bourcier (1979) claims that while drafting a judgment, judges not only
relate their point of view but also the parties ones, in order to insert their
reasoning on the parties grounds and show how a conclusion can be drew
from their assumptions under a law. That is why opposition and
concession can be considered as the fundamental instances of argumentation
(and show the polyphonic structure of judgments).
Setting aside notamment, other argumentative connectives are always
part of a concessive strategy.. According to Cabasino (1986, 1987) this
form of persuasion, based on the interplay of concession and opposition, is
particularly effective in a neutral discourse that constitutes a so-called
“depolarization” among different opinions, and it allows the judge to play
the role of the mediator. The Court tends to solve disputes, showing
respect to the parties’ arguments, in an explicit dialogic discourse.
The expression of concession appears to concede a possibility to
another thesis, temporarily acknowledged but then refuted (Stati 2002).
Concession lets us foresee a refutation in a scheme like certes P… mais Q
where certes introduces a premise that is completely neutralized by the
presence of a restrictive mais (and its variants), which points to a
contradiction between P and Q.
Concession marks a break in judges’ reasoning: the judge can allow for
and acknowledge. It is expressed in French by a number of connectives,
e.g. certes (37 occurrences in CJEU_Fr), bien que (26 occurrences),
nonobstant (16 occurrences), malgré (10 occurrences), en dépit de (6
occurrences), etc.
180 Chapter Eight
As for translations, certes can be amplified (ex. 1), substituted (ex. 2),
or reduced (that is, omitted Ø) (ex. 3). Translation here is thus a matter of a
one-to-many strategy (Malone 1988):
Example 1
59 Or, à cet égard, il ressort, certes,
d’une jurisprudence constante qu’une
directive ne peut pas, par elle-même,
créer d’obligations dans le chef d’un
particulier […].
60 Toutefois, en appliquant le droit
interne, la juridiction nationale est
tenue de l’interpréter […]. (Affaire C-
12/08)
Example 2
57 Enfin, il convient d’admettre que
le règlement n° 2201/2003 […] paraît
certes susceptible, comme Mme
Mesko le fait valoir, d’inciter les
époux à saisir rapidement l’une des
juridictions compétentes […].
Toutefois, contrairement aux
prétentions de Mme Mesko, une telle
circonstance ne saurait, par elle-
même, avoir pour conséquence […]
(Affaire C-168/08)
Example 3
55 Certes, il est vrai qu’American
Clothing fait valoir une dénaturation
des faits à l’égard de ce dernier
argument. Toutefois, il y a lieu de
constater qu’elle n’a pas démontré en
quoi le Tribunal aurait dénaturé les
faits, […]. Or, au point 85 de l’arrêt
attaqué, le Tribunal avait non pas nié
cette pratique, […]. (Affaires jointes
C-202/08 P et C-208/08 P)
59 Ø It is certainly true that,
according to settled case-law, a
directive cannot of itself impose
obligations on an individual […].
60 However, when it applies domestic
law, a national court is bound to
interpret that law […]. (Case C-
12/08)
57 Finally, it should be acknowledged
that Regulation No 2201/2003 […]
might indeed, as Ms Mesko claims,
induce spouses to rush into seizing
one of the courts having jurisdiction
[…]. However, contrary to Ms
Mesko’s claims, such a fact cannot,
by itself, mean that the seizing of a
court having jurisdiction […] (Case
C-168/08)
55 ] It is true that American Clothing
submits that the facts were distorted
with regard to that argument.
However, it has not shown how the
Court of First Instance is supposed to
have distorted the facts, […]. ] At
paragraph 85 of the judgment under
appeal the Court did not deny that
such a practice existed, […]. (Joined
Cases C-202/08 P and C-208/08 P)
 Strategies in the Judgments of the European Court of Justice 181

As just mentioned, the logic counter-argumentations of judges –

necessary to persuade the audience – are made explicit by connectives of
opposition that underline the logic reasoning leading to the refutation of an
argumentation considered to be wrong and thus reaching the legal truth.
The CJEU_Fr corpus shows a number of connectives serving this
crucial function, among which the most frequently used according to the
wordlist are: mais (253 occurrences), toutefois (148 occurrences), en
revanche (71 occurrences), cependant (57 occurrences), alors que (45
occurrences), néanmoins (44 occurrences), au contraire (29 occurrences),
pourtant (12 occurrences). These connectives have the pragmatic effect of
marking “an upcoming unit as a contrasting action” (Schriffin 1987: 128)
as they introduce the counter-claim that will prevail in the argumentation,
and will also orient the addressee (in the sense that the counter-claim
offers the solution for the specific case under the judge’s attention) (cf.
Cabasino 1986, 1987). This interpretation is based on what Anscombre
and Ducrot (1983: 163) call “supériorité argumentative”.
In our corpus, as shown in example (1), certes is followed by toutefois
(37 occurrences out of 148 total number of occurrences). As far as the
translation of toutefois is considered, this item is almost systematically
translated by its equivalent however (and this would be an instance of an
equation strategy, in Malone’s 1988 terms) as in examples (1), (2), and
(3). Notice that English versions tend to use however to express opposition
in a many-to-one relationship with other French connectives such as
cependant and en revanche. See examples (4) and (5).

Example 4

17 Lors de l’audience, la Commission 17 At the hearing the Commission

a précisé qu’elle n’entendait pas
contester cette jurisprudence. Elle a
cependant fait valoir que le fait, pour
les autorités belges, […]. (Affaire C-
219/08)
stated that it did not intend to
challenge that case-law. It maintained
however that the fact that the Belgian
authorities […]. (Case C-219/08)

Example 5

25 […] elle n’a, en revanche, ainsi 25 […] it does not, however, as is

qu’il ressort de son dix-huitième
considérant, pas vocation à
harmoniser de manière exhaustive le
domaine de la responsabilité du fait
des produits défectueux au-delà
desdits points. (Affaire C-285/08)
apparent from the 18th recital in the
preamble thereto, seek exhaustively
to harmonise the field of liability for
defective products beyond those
matters. (Case C-285/08)
182 Chapter Eight

Another strategy is frequently represented by the omission of the

connective of opposition in the English version as shown in example (6).

Example 6

36 […] cet aménagement ne saurait 36 […] such procedures Ø must not

toutefois priver d’effet utile les deprive the provisions of the directive
dispositions de celle-ci. (Affaire C- of useful effect. (Case C-12/08)
12/08)

As for néanmoins, this contrastive connective presents a one-to-one

relationship with its English translation none the less.

Example 7

27 C’est néanmoins cette dernière qui 27 None the less, it is the UCITS
était applicable au moment des faits Directive which was applicable at the
relatifs au litige au principal. (Affaire material time. (Case C-08/13)
C-08/13)

Connectives of explanation / justification

The connectives of this category can introduce an explanation, i.e.
clarify an argument, or justify the judges or parties’ claims. This is a major
category as far as legal reasoning is concerned, because judges must
always justify their appreciations in the reasons. CJEU judgments show
common connectives with this function, e.g. notamment (491
occurrences), parce que (178 occurrences), car (117 occurrences), c’est-à-
dire (112 occurrences), puisque (98 occurrences), en effet (65 occurrences),
etc. The connective notamment, which is the most frequent in our corpus,
is peculiar to legal language (Bourcier 1979; Cabasino 1986, 1987) and
serves a major function that is to specify every particular case to which the
explanation can be enforced and behaves as a real utterance adverb, with
illocutionary force, as it involves the relation between the addresser and
the addressee. Thus, it is not used by judges to define juridical concepts,
rather to specify the application of general rules to particular cases:
Cabasino (1986: 176) claims that notamment extracts the relevant data
from a bundle in order to justify the decision of the judges:

La présence de l’adverbe notamment […] semble indiquer un rapport

exclusif entre l’opération cognitive et la surface linguistique […]. Dans le
langage juridique notamment s’est imposé par rapport à ses synonymes
 Strategies in the Judgments of the European Court of Justice 183

[…] grâce à la dimension logique qui permet au juge d’insérer des

éléments non prévisibles dans son raisonnement, de conférer à celui-ci une
extension majeure, en ayant recours à l’analogie, ou à le mettre en valeur
s’il est associé à la forme déontique.

As for its translation, our data show that this connective does not have
any complete equivalent in English, where it is rendered by synonyms
such as in particular (43 occurrences), particularly (27 occurrences), in
that effect (15 occurrences), in regard (6 occurrences), etc., or it can be
omitted. Examples (8) and (9) provide an example of notamment
translated into in particular and an example of omission:

Example 8

57 […] En effet, ainsi qu’il ressort 57 […] Ø As paragraphs 49 to 52 of

notamment des points 49 à 52 du the present judgment make clear,
présent arrêt, la saisine des seizing the courts of a Member State
juridictions d’un État membre […]. […]. (Case C-168/08)
(Affaire C-168/08)

Example 9

29. Par sa question, la juridiction de
renvoi demande, en substance, si la
Directive 2008/115, notamment ses
Articles 15 et 16 doit […] (Affaire C-
61/11)
29. By its question, the referring court
asks, in essence, whether Directive
2008/115, in particular Articles 15
and 16 thereof, must be interpreted
[…] (Case 61/11)

Connectives of complementation
This class allows adding an extra argument or a new example to what
has already been uttered. Arguments needn’t be equal; their importance
can be varied and graded.
The argumentative chain linking the main argument, its explanation
and possible complementation, highlights an intentional project by which
the judge organises its argumentation pursuing a specific goal. For
example, non seulement… mais encore/également/aussi and its variants
link arguments conveying increasing force. Or it introduces an argument
that the judge considers crucial for his goals.
The most typical complementation connective in legal texts is
d’ailleurs and our data confirm this claim since it is the most frequent
complementation connective in CJEU_Fr corpus with 78 occurrences.
Ducrot (1980: 197) claims that this connective is “impossible dans un
184 Chapter Eight

contexte non argumentatif, lorsqu’on se contente d’inventorier un certain

nombre de faits”, because it suggests the presence of a extra argument. In
Ducrot’s view, d’ailleurs implies a sum of previous argumentations and
presents an additive claim: in a scheme like r: P d’ailleurs Q, Q and P are
co-oriented, that is: Q confirms P, but Q is not necessary compared to P,
where P is the main claim, enough to justify the conclusion. According to
Bourcier and Bruxelles (1984) d’ailleurs shows the position of the author
towards its own claims (as support of the argumentative intention).
As we can see in examples (10), (11), (12) and (13), the French
connective d’ailleurs is rendered by English connectives such as also (35
occurrences), besides (27 occurrences), indeed (8 occurrences),
furthermore (6 occurrences), etc., in a one-to-many relationship.

Example 10

47 […] ce principe ayant d’ailleurs 47 […] which has also been

été réaffirmé à l’article 47 de la charte
des droits fondamentaux de l’Union
européenne, proclamée le 7 décembre
2000 à Nice (JO C 364, p. 1) (Affaire
C-12/08)
reaffirmed by Article 47 of the
Charter of fundamental rights of the
European Union, proclaimed on 7
December 2000 in Nice (OJ 2000 C
364, p. 1) (Case C-12/08)

Example 11

16 […] ainsi que l’expose d’ailleurs 16 […] as is besides stated by the

la juridiction de renvoi, que celle-ci referring court, that that convention
comporte également des dispositions also includes provisions relating to
relatives à la prévention d’une double the prevention of double taxation.
imposition. (Affaire C-128/08) (Case C-128/08)

Example 12

38. […] Ainsi que l’a fait valoir la
République française, il arrive
d’ailleurs que le transport de corps
soit effectué par un transporteur
agréé, indépendamment de toute
prestation de pompes funèbres.
38. […] As the French Republic
submitted, the transportation of the
body may indeed be carried out by an
approved carrier irrespective of any
funeral services. (Case 94_09)
 Strategies in the Judgments of the European Court of Justice 185

Example 13

32 […] Ceci correspondrait, 32 That corresponds, furthermore, to

d’ailleurs, à la pratique de l’office de
la propriété intellectuelle du Canada,
qui aurait consenti à enregistrer des
marques avec une feuille d’érable à
onze points sous la condition de
l’acceptation d’un «disclaimer» pour
celles-ci. (Affaires jointes C-202/08 P
et C-208/08 P)
the practice of the Canadian
Intellectual Property Office, which
agreed to register trademarks with an
eleven-point maple leaf provided that
a ‘disclaimer’ was accepted in respect
of them. (Joined cases C-202/08 P et
C-208/08 P)

Other complementation connectives are: or, à plus forte raison, de

surcroît, à titre surabondant, pour le surplus, par ailleurs. Just notice that
the French connective or is always omitted in the English versions, as in
examples (1), (3) and in the following (14) and (15):

Example 14

54 Or, certains des arguments 54 Ø Some of the arguments

présentés par American Clothing au
sujet de la pertinence de certaines
circonstances de l’espèce […] n’ont
pas trait à des questions de droit et ne
relèvent, par conséquent, pas de la
compétence de la Cour.
55 […] Or, au point 85 de l’arrêt
attaqué, le Tribunal avait non pas nié
cette pratique, […]. (Affaires jointes
C-202/08 P et C-208/08 P)
submitted by American Clothing
regarding the relevance of some facts
of the case […] do not concern issues
of law and consequently do not fall
within the Court’s jurisdiction.
55 […] Ø At paragraph 85 of the
judgment under appeal the Court did
not deny that such a practice existed,
[…]. (Joined Cases C-202/08 P and
C-208/08 P)

Example 15

78. Or, aux points 39, 55 et 66 du 78. Ø In paragraphs 39, 55 and 66

présent arrêt, la Cour a rejeté les above, the Court has rejected the first,
premier à troisième moyens et a second and third grounds of appeal
confirmé l’arrêt attaqué. (Affaire and upheld the judgment under
C_533_12) appeal. (Case C_533_12)

Connectives of conclusion
This type of connectives marks the final stage of reasoning or of a step
in argumentation. What is important to highlight is that we cannot find a
186 Chapter Eight

preferred connective among the ones identified in the corpus as the most
frequent ones since they are used interchangeably: alors (205 occurrences),
ainsi (172 occurrences), donc (76 occurrences), en conclusion (45
occurrences), en definitive (23 occurrences), finalement (12 occurrences),
en fin de compte (4 occurrences), etc. Generally speaking, the conclusion
of the reasoning is expressed by consequence markers – par voie de
consequence (9 occurrences), en consequence (15 occurrences) – or by
causal markers, typical of judicial style – vu (54 occurrences), considérant
que (47 occurrences), dès lors que (33 occurrences), eu égard à (7
occurrences), etc. When the judge closes his/her reasoning, he/she refers
back to everything that has been previously said using recapitulation
sentences; he/she gives his/her appreciation as a consequence of what
he/she asserted previously. This argumentative step is thus introduced in
our CJEU_Fr corpus by expressions as dès lors (45 occurrences), Il
s’ensuit (32 occurrences), Dans ces conditions (11 occurrences), Il résulte
de (tout) ce qui précède (24 occurrences), Il découle de l’ensemble de ces
éléments (6 occurrences), etc.
As far as CJEU_En corpus is concerned, the most frequent conclusive
connectives are in conclusion (76 occurrences), consequently (54
occurrences), it follows from that (41 occurrences), it is in the light of
those considerations (17 occurrences), etc.
The introduction of the decision, as conclusive step of the judgment, is
left to a fixed formula, which fulfils the same linking function:

Par ces motifs, la Cour déclare et On those grounds, the Court hereby
arrête
Par ces motifs, la Cour dit pour droit On those grounds, the Court hereby
rules

Use of connectives in native vs. translated judgments

To test our claims on a possible influence of the French language on
the use of connectives in the English translations, we also compared the
CJEU_En corpus to a reference corpus of 41 judgments delivered by the
House of Lords (UK) (HoL corpus) collected from 1985 to 2003 (461,865
tokens). To make the comparison, we used Wordsmith Tools’ keywordlist
in order to find out if judgments delivered by native judges present a lower
number of connectives. Tab. 8-1 shows the results obtained:
 Strategies in the Judgments of the European Court of Justice 187

Rank Keyness in the HoL Connectives

Corpus
112 0.024 although
114 0.024 consequently
116 0.024 furthermore
117 0.024 lastly
118 0.024 moreover
119 0.024 thus
211 0.012 however
224 0.012 secondly
225 0.012 since
227 0.012 thirdly
230 0.012 whilst

Table 8-1

As it is possible to notice at a first glance, the connectives found in the

keywordlist have very low ranks of keyness (from 0.024 to 0.012%) in the
HoL corpus, thus indicating a less frequent use these linguistic items in
judgments delivered in the native context. It is also worth noticing that the
categories of argumentative connectives most represented are those of
opposition/concession (although, however, whilst), those of complementation
(furthermore, moreover) and those of conclusion/consequence (consequently,
thus, since). Moreover, the keywordlist highlights another major difference
that is the use of logical connectives such as lastly, secondly, thirdly,
indicating the highly structured progression of the legal reasoning that
seems to be more typical of EU judgments thus connected to French
judicial tradition rather than the British one.

Concluding remarks
The type of logical argumentation we have been dealing with in this
study develops as a combination of closely related steps across subsequent
paragraphs, where we can generally remark: 1) the introduction of the
proofs supporting the argument of the applicant, 2) the refutation of the
Court, 3) the Court’s opposing argument(s), 4) its conclusive argument, 5)
the possible opening of an incident argument, and 6) the final conclusion,
which follows as a consequence drawn from the previous utterance. Each
logical transition of the argumentation is enclosed in a numbered article of
the corps du jugement and marked by a connective.
The values and illocutionary forces of connectives allow judges to
enrich the structure of CJEU judgments in the interest of coherence and
188 Chapter Eight

cohesion. Specifically, we have seen that some items are traditionally

more frequent in legal language and argumentation due to their inherent
meaning and/or the peculiar function they take on in legal discourse.
Where the appreciation of the judge is not always indisputable, they
contribute to making the text highly cohesive and coherent and, thus, work
in order to make the decision irrefutable.
To conclude, it is possible to say that even if the use of connectives is
far more important in French judgments than in English ones, as showed
by the native HoL corpus, European judgments translated into English
cannot completely avoid the influence of authentic French versions, as
showed by the comparison between CJEU_FR and CJEU_EN corpora. As
a matter of fact, a more frequent use of argumentative connectives can be
observed in CJEU_EN corpus rather than in the HoL corpus.
As far as the English translations are concerned we must notice, on the
one hand, a tendency towards a one-to-many translation, which confirms a
relatively more fixed and recurrent use of connectives in French, and on
the other hand, a frequent omission of items, which is accountable in terms
of the legal English tradition.
Finally, we must CERTES acknowledge that the fewer connectives
found in the English versions do not weaken the cohesion of the texts and
achieve the same goal of persuasion. D’AILLEURS, this is a way to
include the peculiar features of legal English within the constraints of a
standardized structure. TOUTEFOIS, if a doubt on the right interpretation
of a sentence/set of sentences would come out, European legislation states
that it must be resolved by comparison with the French authentic
judgment.

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 CHAPTER NINE

DELIVERING JUSTICE:
DO MEDIATORS AND LAWYERS
SPEAK THE SAME LANGUAGE?

LESLEY ALLPORT

In this chapter I will consider the growth in the use of mediation as a

form of alternative dispute resolution (ADR) within civil justice and the
impact that the coalition of two distinct disciplines, that of mediation and
law, has had upon the other in terms of language and meaning. As the
boundaries between legal practitioners and mediation professionals have
become increasingly blurred in the effort to achieve a culture of settlement
within the civil justice system, so their language has been borrowed,
exchanged and evolved. However, I will argue that the fundamental
differences in outlook between the adversarial lawyer and the non-partisan
mediator reveal significant variations in the use of the language which
gives meaning to these roles. While mediators and lawyers may share
similar values about justice and fairness, they differ as to the means by
which they might be achieved. The following analysis draws on my own
empirical study, conducted in 2013, in which a series of semi-structured
telephone interviews was carried out with 49 mediation practitioners,
working across a range of different contexts including the civil and
commercial sector, family law, education settings, local communities,
health, human equalities and the workplace.

Blurring the Boundaries

Increasingly, within the court system, mediation is used as an
alternative means of resolving disputes yet the practices of legal
representation and mediation form two quite distinct activities. As Derek
Roebuck (2010:407) states plainly in his historical overview of the use of
mediation since Anglo Saxon time, “ADR is not the alternative, litigation
192 Chapter Nine

is.” He demonstrates that mediation is a practice which pre-dates the

justice system and that, as early as second century BC, in Rome it was
common practice to “look for a mutual friend and a kind of peacemaker”1
to resolve disputes. His examples from various periods of history show
frequent allusions to peaceful reconciliation with the support of a mediator
or, in Elizabethan England, to help disputants to come to “a frendly and a
quyett end.” (401)
Yet in the last thirty years, as the use of mediation has become more
frequent, it has come to be viewed as a new and modern method of
handling disagreements within the civil justice system. The consequence is
that the two professions have become much more closely aligned.
Commenting on the development of public dispute management over the
last forty years, Simon Roberts (2002:18 and Roberts and Palmer, 2005: 4)
observed that the culture of settlement has been influenced by three
factors:

x the emergence of a new body of mediation professionals operating

outside the court system in a number of contexts;
x the active engagement within the English judiciary in case
management, heavily influenced by the Woolf reports in the mid-
1990s (1995, 1996), which explicitly emphasise the importance of
reaching early settlement;
x the defensive response of legal professionals to embrace dispute
resolution as a significant strand to their work, including the
practice of mediation.

The growth in the number of lawyers training and practising as

mediators has had an inevitable impact on the nature of mediation. As
Roberts says:

Combining ‘advice’ with the less intrusive project of help with

communication and so claiming to be an authoritative specialist, knowing
better than the parties how the issues confronting them are to be resolved,
an intervener thus significantly alters the universe of meaning within which
any agreement is reached, coming to share control over the outcome with
parties. (1993:456)

Bringing specialist legal knowledge to the mediation setting, together

with a tradition of partisan advice giving, therefore threatens both the
impartiality of the mediator and the defining characteristic of mediation as

1
Roebuck (2010: 395), citing Favorinus, second century philosopher.
 Delivering Justice 193

a process - that of the parties’ control of the outcome. The tendency of

lawyers to assimilate a different role within the civil justice arena and, by
doing so, to influence the nature of the process itself, has been noted by
Bhatia and his associates. Their study of international commercial
arbitration was undertaken by a group of specialists in discourse analysis
with a view to assessing how far ADR was being progressively ‘colonised’
by litigative practices. From the outset of the project, the researchers were
aware that:

... the legal community have found ADR a significant means of extending
their professional calling and augmenting their business income… [and
that as a consequence ADR] as a non-legal practice is increasingly
influenced by the practices and procedures of litigation, a development
which seems to be contrary to the spirit of ADR, and of arbitration in
particular, to resolve disputes outside of the courts.2

The concern expressed by the researchers that “lawyers rely on

discourses and practices typical of their profession when acting as
arbitrators” (Catenaccio 2010:50), could equally be expressed with respect
to mediation. The emphasis on settlement, for example, potentially
undermines the wider aspiration of mediation to support relationship repair
or to achieve a positive conflict interaction (Bush and Folger 2005). In her
evaluation of the role of lawyers in medical negligence mediation, Linda
Mulcahy (2001), argues that it is difficult for legal representatives to move
away from viewing “the main purpose of dispute settlement as the
economically efficient disposal of cases” (218) in their clients’ favour and
of mediation as a process that helps to improve the working of the court
system. Some respondents in her research did not recognise any cathartic
value in the mediation process and were threatened by the lack of control
that came about as a consequence of parties having an active involvement
in the meeting. One described his view of mediation in this way:

Mediation is simply an extension of the lawyers talking to each other and

sorting it out. Off the record all they are doing in mediation is just passing
those messages through someone else but it is still lawyers framing the
dispute. (2001:203)

2
Further information about the research project, International Arbitration Practice:
A Discourse Analytical Study (Project No. CityU105/06H), led by Vijay K.
Bhatia, can be found at www.english.cityu.edu.hk/arbitration. Accessed 27-09-
2014
194 Chapter Nine

Moreover, Mulcahy’s findings reinforce the idea of ‘colonisation’, the

takeover of mediation practice by legally-trained professionals. She not
only points to the substantial increase in the number of lawyer-mediators
but also the tendency on the part of many larger legal firms to rename their
litigation departments in order to reflect a broader approach to dispute
settlement. Key players such as the Law Society, the Bar Council and the
Lord Chancellor have publicly supported the use of mediation. While this
can be interpreted as a recognition of the failings in the civil justice system
identified in the Woolf Report (1996), another view is that it reflects “a
proprietorial interest in mediation as a way of maintaining the professional
status and dominance of lawyers” (Mulcahy 2001:204) and staking a claim
as “legitimate occupants” of the practice.3
Some might question the significance of this apparent takeover. Others
would argue that, as the principal architects of settlement agreements
within the civil justice system, lawyers are well placed to use mediation as
an additional tool, alongside their legal expertise, to achieve that end.
However, to take this view significantly limits the scope of mediation to
an “adjunct or offshoot” (Mulcahy 2001: 218) of litigation rather than a
process in its own right. It also ignores fundamental differences between
lawyers and mediators, their respective roles in the delivery of justice and
the language they use in the execution of these roles.

Perceptions of Justice
It is not difficult to point to differences in how lawyers and mediators
define justice for their clients. Within the court system, justice is based on
law and legal precedent, where the language of the law – that of ‘statutes’,
‘ordinances’ ‘and ‘due process’ – dominates. Tiersma outlines the gradual
movement of legal language from an oral tradition in Anglo-Saxon times
to one which is now entirely written. While early court reports were
merely a recording of an oral event, they later came to be regarded as more
important than the event itself, leading to “an ever increasing fixation on
the exact words of legislation [which] has permitted the development of
the doctrine of precedent” (Tiersma 1999: 36ff). Legal language is
therefore used to define law and social order based on the experience of
the past. Justice is about the implementation of that social order. As
Roebuck says, “The law is not primarily concerned with whether it does
justice to the individual. The law’s primary concern is not justice but
order” (Roebuck 2010: 184). As such it is conducted publicly. Moreover

3
See also Roberts (1992).
 Delivering Justice 195

as courts are overloaded, the concept of order is increasingly compromised

by considerations such as proportionality, expediency and cost-
effectiveness.
By contrast, a defining principle of mediation is its commitment to
party determination. Parties, not mediators, decide the outcome. Implicit in
this is the belief that people have the ability, even a responsibility, to make
their own justice and to decide what is fair for themselves and each other.
The process is conducted privately and outcomes are specific to the
particular situation. The protections of confidentiality and legal privilege
mean that mediation is, for the most part, an oral rather than a written
process. There is no record of the event of mediation. Future actions and
points of agreement may be written down but the dialogue between
parties, the substance of the mediation itself, remains protected. What is
more, outcomes are not limited to legal remedies which cannot cater for
every eventuality. One civil and commercial mediator in my study
commented:

Mediation is trying to resolve a difference between the parties in a manner

that is acceptable to both of them, not necessarily in achieving their strict
legal rights, and without recourse to third party decision making. (C13,
civil and commercial mediator)

Another respondent provided an example of a case in which a concrete

supplier and a builder, who had worked together for years, found
themselves in a job that went wrong. They were forced into dispute by
their insurance companies and, while concerned about their businesses,
both declared their friendship to be of primary importance. Through
mediation they arrived at a solution whereby they shared responsibility for
costs over a period of time. The mediator commented:

It meant that they kept the relationship, they kept in business together, they
sorted the dispute out and they didn’t have to go to court. That is the
beauty of mediation in my view: that you can actually get a resolution that
is completely off the wall when you look at the law. It doesn’t match the
law at all, but it suits both parties. What lawyers can’t do is try to find that
type of solution - because they are not allowed to and neither is the judge.
Mediation is the only method of ADR that can actually deliver something
like that. An adjudicator can’t do it – he’s got to come up with a decision
as well. (C11, civil and commercial mediator)

While lawyers and mediators would no doubt agree on the importance

of fairness and justice, the legal system may not always be the best way to
achieve these goals. Centuries ago Aristotle raised the question “How does
196 Chapter Nine

equity relate to justice, and the equitable to the just?” (Aristotle 350 BC)
The principle of equity is “that which is fair and yields to reasonableness.”
He argues that equity is not always just according to the law, but
sometimes a “correction of legal justice.” (Aristotle 330 BC, 1.13.13-14.)
The equitable man therefore, is one who:

…does not insist on his strict legal rights but is prepared to settle for less
though he has the law on his side. Such is the equitable man and that is the
character of equity: a kind of justice. (350 BC, 5:10)

Mediation supports a conversation that builds understanding and

creates the opportunity for an equitable outcome in a way that the
prescribed law cannot. Another respondent in my study gave the example
of a dispute between a builder and his customer, whose husband had died
part way through the job. The builder had in fact done nothing wrong but
was made a low offer, which his representative advised was unfair. The
builder’s response was to say: “Look, she’s lost her husband. If I lose
thirty grand I’m still better off than her, aren’t I?”

The Purpose of Dispute Resolution

Within the court system “law is about establishing facts, applying a
special kind of language, and exercising discretions or judgement”
(Roebuck 2010: 179). Since the publication of the Woolf Report in 1996,
the English civil justice system has steadily adopted case management and
early case settlement in order to reduce the need for formal court
adjudication wherever possible. The use of alternative dispute resolution
within this system has the primary purpose of bringing the dispute to an
end through negotiation. Nevertheless, disputants still expect to be legally
represented and, in civil and commercial cases, lawyers most generally
take part in mediation. The role of the lawyer has traditionally been to act
as an advocate for one side and to argue the case in order to improve the
client’s chance of success. There is therefore an inevitable adversarialism
attached to the law and formal court adjudication. Lawyers are trained in a
tradition in which two parties with conflicting interests are represented in
order to establish fault or blame. They are part of the adversarial culture
described by Lord Woolf, which he subsequently set out to reform. While
lawyers only exceptionally take cases to court, they actively utilise the
arena of litigation and bargain in the shadow of its rules and norms.
Mulcahy suggests that “this imposes a distinctive flavour on the
negotiations with emphasis being placed on evidence, proof and a binary
win-lose resolution of a financial nature” (2001: 215). This was recognised
 Delivering Justice 197

by many of the respondents in my study. For example:

There is so much resting in this country on our existing legal system: the
idea that you win by debate; you win by argument; you win by beating the
other. Too many people are invested in that so that the idea of actually:
‘Let’s just sit down and try and be sensible about this’, simply isn’t
culturally acceptable to an awful lot of people. (B12, family mediator)

Mediation, on the other hand, in its broadest sense, is a consensual and

co-operative process in which parties are encouraged to speak for
themselves. The roots of mediation lie in its aim to repair relationships.
History shows that a primary purpose of seeking out a mediator was to
restore peace rather than “the discovery and application of an objectively
just solution.” (Roebuck 2010: 303). Communities tried to avoid outcomes
that awarded everything to one side. Roebuck describes how even where
the strength of the case was clearly in favour of one party, the successful
candidate would be required to make allowance or contribute a gift to the
other side who could then return to the community with no loss of face. A
relationship would be maintained and the disputants, together with their
families and friends, would hope to resume their lives without further
problem. Today, mediators still see their role as supporting good
communication so that parties can reach agreement based on increased
understanding. Elizabeth Stokoe, a conversation analyst, has studied the
nature of dialogue between mediators and people in conflict (Stokoe
2013). Before mediation, parties identify what she describes as a “one-
sided problem”. Typically people in conflict demonise the other party
while absolving themselves (“I would be prepared to come and talk but
it’s her – she will never listen to anyone.”) This is a stance that is carried
into the court setting and reinforced by it. By contrast, she argues that
mediation offers a “two-sided solution” which is “talk based.” The
following quotations from my own interviews illustrate the importance
that mediators place on communication. The opportunity to frame the
problem as a two-sided one is recognised by practitioners both as a benefit
of mediation and as a measure of its success.

Effective communication is very important. People do use the wrong

words. They use the wrong language. And they can say things in a certain
way, by putting emphasis on things, which upsets the other party straight
away. (C10, workplace and community mediator)

I listen out for language, where people move from the ‘I’ to the ‘we’ and
the ‘us’. I am listening out for much more relational language and possibly,
when people are starting to think of moving towards actions that they are
198 Chapter Nine

reflecting more on the impact of them on others and vice versa, rather than
being firmly entrenched in their position. The focus is on relationships and
communication. (D02, workplace mediator)

The interviews I conducted were not restricted to practitioners

operating within the civil justice system but included mediators who were
working in the community, education, health and workplace sectors. I
asked respondents how they would describe the purpose of mediation. The
responses of those working in commercial and family mediation were
influenced by a perceived pressure to settle and many had absorbed the
language of settlement in their practice to the extent that some viewed it as
a crucial part of their contractual obligation to parties. However, looking at
the sample as a whole, the responses indicated a much broader spectrum of
potential outcomes that included bringing an end to conflict, improved
communication and relationship repair. The nature of the relationship
between parties, and in particular the issue of whether it is likely to
continue into the future was identified as a key influencing factor. While
there is clearly an emphasis on settlement within civil justice settings it is
important to note that the benefits of mediation are not restricted to this.
Those aspects relating to relationship improvement were identified by
respondents as achievable across all areas of delivery. Carrie Menkel
Meadow et al describe this wide range of possibilities as follows:

Mediation is seen as both an ideology (of peace-seeking, transformative

conflict-resolving human problem solving) and a practice (of task oriented,
communication enhancing dispute settlement). (2006: 101)

I grouped respondents’ views about the purpose of mediation into six

different themes recorded in the chart below. Using Menkel-Meadow’s
two descriptives (i.e. that of ideology and practice) as points at either end
of a continuum I organised these themes to indicate broadly where each
would sit along it. The theme of empowerment reflects the most
ideological outcome, whereas settlement is the most practical. Several
respondents identified more than one purpose; therefore, the numbers below
give an indication of the frequency with which a particular theme is
identified.
 Delivering Justice 199

Figure 9-1 Purpose of mediation

The findings indicate that mediation fulfils different purposes at

different levels and that, as these responses illustrate, practitioners are very
conscious of this:

There is not one answer. I assume that people come to mediation with a
whole range of ambivalence and contradictory motives and feelings. One
can use a simplified, minimalistic explanation: that it is an alternative to
court, it saves money, [people] go to participate in making decisions… and
all those well used phrases that we might use. I think it is much more
complicated and idiosyncratic and nuanced than that in reality. But from
my perspective – how do I define the purpose of mediation? I think it is
really to give a peaceful, neutral space to people in transition, who are
riddled with ambivalence and contradictory feelings and all the rest of it, to
help them try and make some decisions and become clearer about their
trajectory and what they can do about it. (B08, a practitioner working in
both family and commercial mediation)

I think it is a mixture between a healing process and a problem solving

process. I don’t think it is one at the exclusion of the other. It is seeking to
restore a relationship wherever that is possible, but obviously there is often
a tangible and real issue that needs to be resolved. Yes, I would apply it to
all areas. There is nearly always a problem to solve and a relationship to
resolve. It is not always the case that, if you are dealing with a community
dispute, you always have to focus on the relationship and, if you are
dealing in a commercial dispute, you always have to focus on the problem
200 Chapter Nine

- it’s much more of a dance than that. We discovered from experience that
you sometimes cannot get to problem solving without doing some work
around the relationship: listening and working through hard feelings. On
the other hand there are times where people cannot get to a place of
working on issues and relationships until they have seen some progress on
a tangible issue. (C16, Community and workplace mediator)

Despite the apparently converging paths of the two professions,

therefore, my argument is that mediators and lawyers have a fundamentally
different outlook in terms of how they understand the purpose of dispute
resolution and the delivery of justice. This is reflected in the language that
they employ, which, for both of these professional disciplines, is
instrumental. However, as I shall go on to examine below, it is a tool that
is used in very different ways.

The Language of Disputes

The use of language among lawyers and mediators is markedly
different. While the law defines the behaviour of those who approach it for
a resolution in terms of ‘rights’ and ‘wrongs’, mediation seeks to help its
users to understand each other’s position in terms of ‘interests’ and
‘needs’. The legal process is investigatory in character while mediation is
an exploratory process which seeks a solution that is unique to the
particular situation. Even the labels attached to those involved in the
argument vary and reflect an expectation of certain behaviours: the civil
justice system identifies ‘disputants’, one of whom is a petitioner and the
other a respondent. The terms carry the implication that a case will be laid
before the court, arguments put forward on both sides and a determination
made. Mediation, on the other hand, involves parties who, in an effort to
move on from the debilitating effects of conflict voluntarily agree to find
their own mutually acceptable solution, with the support of a neutral third
party. The first inevitably apportions guilt or blame and results in a winner
and a loser. The second encourages mutual responsibility and
collaboration in the expectation that both sides will benefit from the
outcome. It is interesting to see how the use of metaphorical language
reflects the differences inherent in the two professions. John Haynes, a
leading US mediator in the 1990s, commented on the metaphorical
language associated with representation, pointing out that it reinforces the
adversarial nature of the process: lawyers come to the table ‘armed with
the facts’ and ‘ready to shoot down their opponent’. Mediators on the
 Delivering Justice 201

other hand are equipped with a ‘toolkit’.4 The use of metaphor within the
process itself could be described as one of these tools, where, for example,
mediation is described in terms of a journey which assists people to
consider how they can ‘move forward together’, ‘build bridges’, ‘take the
next step’ or to see the ‘light at the end of the tunnel.’ Mediators
consciously use language to encourage parties to view their conflict
differently. Strategies such as ‘positive reframing’5 are employed to help
people understand one another beyond the initial attitudes of anger or
criticism. Through careful listening and reflection, mediators support
parties to articulate their real concerns, while techniques such as
‘mutualising’ and ‘normalising’6 are intended to reinforce joint
responsibility and collaborative problem solving. Neil Robinson writes
about the change that can occur in mediation. The language that he uses to
do so is in itself an illustration. He says:

The transformation we seek for our clients is from entrenched, adversarial,

self-interested, focussed on fighting the battle, to co-operative,
collaborative, engaged in effective communication and dialogue, focussed
on working towards a common solution and […] working in partnership.
(Robinson 2012:340)

Often the effect of the interventions described above is to simplify the

exchange between parties and to break dialogue down into manageable
chunks. The purpose of the mediator’s use of all these language strategies
is to get to the real meaning behind the quarrel and to build understanding.
By contrast, legal rhetoric can be both complex and confusing. Rather than
breaking down arguments, Mulcahy notes the tendency for lawyers to
develop an argument from the information presented to them by their
clients:

Lawyers do much more than reproduce the arguments made by their

clients. They play a pivotal role in the evolution of the grievances their

4
See John Haynes and his three articles on Metaphors and Mediation, Parts 1, 2
and 3 (1998) which can be viewed at www.mediate.com (accessed 24.09.2014).
5
‘Positive reframing’ involves taking a non-constructive or negative statement and
reflecting back the meaning without the negativity. For example: “He’s an
absentee manager – never here when you need him - absolutely useless.” Reframe:
“So you would like to see more of your manager.”
6
‘Mutualising’ is used to identify common ground between parties or to reinforce
collaboration. ‘Normalising’ is used to combat the sense of isolation that people
often feel in conflict by offering reassurance that others have experienced the same
thing.
202 Chapter Nine

clients represent to them. They mould them and reinvent them as formal
claims which are recognised by the legal system. The rhetorical accounts
of common sense morality offered by disputants become generalised
accounts of harm which fit into categories recognised by statute and case
law. (Mulcahy 2001: 207)

In his book ‘Legal Language’, Tiersma describes a range of strategies,

such as the use of lengthy and complex sentences, conjoined phrases,
unusual sentence structure and multiple negation (Tiersma 1999: 51ff) that
make legal language dense and difficult to comprehend. He goes on to
examine what he describes as a “sub-language” with limited subject
matter, containing “lexical, syntactic and semantic restrictions,” which
altogether form “a complex collection of linguistic habits that have
developed over many centuries and that lawyers have learned to use quite
strategically” (1999: 173). While the language of mediation is not so well
established, it is nevertheless possible to identify devices in use that are
similar to those outlined by Tiersma. The employment of different types of
questioning is one example. Both mediators and lawyers use questioning
strategically to invite a broad account from the speaker, to probe more
deeply for meaning or to pinpoint it quite concisely. Another is the use of
jargon, which he defines as the vocabulary of a trade, occupation or
profession. He argues that, within the lawyers’ vocabulary, phrases such as
‘conclusory’, ‘hypothetical’, ‘predecease’ and ‘judge-shopping’, fit into
the category of jargon. Similarly mediators in conversation with each other
commonly use terms such as ‘process’, ‘dialogue’, ‘informed decision
making’, ‘sense’ (used to suggest meaning rather than attribute it) and
‘common ground.’
The level of formality presents another crucial difference between
mediation and litigation. While civil and commercial mediation may take a
more business-like approach not found in other contexts,7 the process is
nevertheless intended to present an opportunity for informal resolution,
reinforced by its voluntary, private and non-binding nature. Even family
mediation, which comes within the civil justice arena, adopts a more
relaxed approach, taking place largely away from the courts. The divide
between formality and informality is again emphasised through language.
Legal language is characterised by impersonal constructions that are
intended to create an impression of objectivity and authority. The use of

7
For example, there is a more formal structure to the process which is
demonstrated in the use of ‘opening statements’ from legal representatives, the
presence of experts of various kinds who provide reports, side meetings and a more
business-like approach to proceedings.
 Delivering Justice 203

the first and second person (I and You) is generally avoided, not only by
lawyers but by judges who tend to refer to themselves as the court, rather
than I. By contrast, mediators are much more likely to encourage parties
specifically to talk in personal terms, and to see the other person as a
human being, in the interests of restoring a relationship which may be of
importance in the future. Furthermore, a characteristic of parties in conflict
is the tendency to expand their argument with the intention of
strengthening it, often speaking not only for themselves but for others in
the situation too. For example: “It is not only me that thinks you are an
absentee manager – you should hear what the rest of the team say about
you behind your back!” A typical response from a mediator might be to
remind the employee that the process only involves the two parties, while
inviting them to comment further on the specific effect that their
manager’s absence has had on them individually.
Formality is emphasised through the use of nominalisations such as
‘settlement’ or ‘resolution’. Outside the justice system mediators may do
the same but the language is likely to be softer and less prescriptive.
Outcomes are framed less legalistically as ‘agreements’ or ‘solutions.’
Tiersma discusses the use of the word ‘shall’, which, in legal terms,
functions as a promise or an obligation. By contrast, a typical outcome
reached in family mediation will phrase agreements as intentions or
proposals. This is an area in which the context in which mediation is
delivered undoubtedly has an influence. As I mentioned above,
respondents in my study working in the justice system were much more
likely to talk in terms of settlement and resolution. Again, this is
reinforced by the movement of legally-trained professionals into the
mediation sphere. However, respondents working in this sector also saw
the dangers of using the language of the court. The following mediator
commented on the use of the phrase ‘party determination’:

Parties evolve the outcome. ‘Determine’ is too strong. Mediators broaden

the options and parties participate in that. It is about language: The reason I
worry about determination is because evaluative mediation starts talking
about determinations and judges and law – people come to
‘determinations’ and so when you are dealing in the arena that you are in,
which is close to law and you start ‘determining’ something, you are sort
of saying that they sit like judges and decide between them. Actually it is a
much more fudgy process. You get to a point where you say ‘Yes, I think
you are in a zone of potential agreement now. I think the numbers between
you are such that I could say that you could achieve agreement. But you
are both of you going to have to go further.’ And then you get to a point
where you say ‘I’d like you to let me tell each other what the figure
difference is between you so that you can see how wide the gap is because
204 Chapter Nine

I need you to go a bit further if you are going to solve this. (C14, civil and
commercial mediator)

This quote provides an apt illustration of another feature of legal

language referred to by Tiersma, the tendency of legalese to use
homonyms, or words that have a different legal meaning from that of
ordinary usage (Tiersma 1999: 111).
The growth in the number of litigators and arbitrators who have
expanded their practice to include mediation results in increasingly formal
associations in all sorts of ways including, for example, promotion.
Garzone (2010:23ff) examined the websites of various arbitration
providers in order to compare the language used to describe alternative
dispute resolution processes. Looking at one of the providers in the
research (the London Court of International Arbitration), she observes the
formality conveyed through the use of impersonal, non-interactive
language. The site outlines extensive rules for mediation and suggests
mediation clauses, such as the one below, which is for use in a contract. It
provides an example of a lengthy and complex sentence, expanded to
cover a number of eventualities and conveys a sense of formality that is at
odds with the process itself:

In the event of a dispute arising out of or relating to this contract, including

any question regarding its existence, validity or termination, the parties
shall seek settlement of that dispute by mediation in accordance with the
LCIA Mediation Rules, which Rules are deemed to be incorporated by
reference into this clause. (LCIA website 2014)8

Another principal characteristic of mediation relevant to this

examination of language is the importance of parties being able to speak
for themselves: what mediators refer to as ‘party voice.’ Many respondents
in my study saw this as an essential part of the mediation process. Perhaps
because of the reasons outlined above, those practitioners working within
the civil justice system spoke about how they go to great lengths to ensure
that parties get the opportunity to speak, though this is often against the
expectation of their representatives. In some cases respondents take active
steps either to manage the lawyer’s contribution or to eliminate it
altogether, as these quotations illustrate:

The self-representation of the parties is vital. Where people are represented

you nearly always find the solicitors will give the opening statement and

8
See the LCIA website: http://www.lcia.org accessed 22.09.2014.
 Delivering Justice 205

include their spurious legal arguments. I will always say to the individuals
‘What would you like to say?’ And quite often they then look puzzled, but
then they start and what they want to say is quite different to what the legal
people have said and all sorts of things come out in that moment. As an
example, in this one case the lady started talking and said to the builder
‘Well the problem was that my mum was dying, I didn’t know you were
coming and it made a mess……’ and so on. The builder just said ‘Well,
you never told me. I didn’t know. I would never have done it.’ All of a
sudden there was a completely different atmosphere – and that was in the
first twenty minutes. So I think it is great when the two parties do talk
because they will put the emotions in as well, you see, which is sometimes
good. It is amazing how often something comes out in a situation like that
which the other side had no idea about that then affects their whole view of
the situation. (C11, civil and commercial mediator)

It is about ensuring that [the parties’] point of view is put across. The
mediator is pulling out all of the stuff that a lawyer actually closes off.
[She] is trying to widen the scope of the problem to find that common
ground and something on which you can build a solution. A lawyer is
trying to narrow it to points of law on which a determination can be made.
What the mediator is doing is trying to find the widest possible ground for
self –determination so that people can say ‘Yes, I can concede on that if I
can have this. (C14, civil and commercial mediator)

Sometimes lawyers will try and interfere and say ‘Oh, you shouldn’t
answer that.’ I will just say ‘Well, I’m sorry this is Mrs X that we are
dealing with here. I cannot deal with you. It is for her to answer and, if she
is not prepared to answer those sorts of questions, I’m afraid it can’t
continue. And if you want to go and sit outside because you can’t keep
quiet on this, then please do that.’ There is no point in getting a lawyer’s
version of what his client would want to say. It just doesn’t work like that.
(C10, commercial, community and workplace mediator)

Parties speaking for themselves is a big issue. In commercial mediation

people often speak through their lawyers. If I had my way, I would ban
legal representatives. I actively discourage it. I say: ‘Try it’. They can be in
the next room. They can come along and sit in the next room. Because
what happens is the parties never speak for themselves. You never get to
hear what they feel. They are paying for solicitors or barristers to be there
so they want them to say their piece. They never engage and the lawyers
take over and it’s not mediation is it? In no sense is it mediation. It
becomes a negotiation. The lawyer or the solicitor or barrister will always
reframe the debate in terms of the law and you never get to hear what the
parties think or feel. I feel really strongly about this. Whatever it is, it isn’t
mediation. It is only mediation when the parties are talking to each other.
(B03, family and commercial mediator)
206 Chapter Nine

With the changes to civil justice in the last thirty years, mediation and
law have inevitably influenced one another. As mediation has become an
expected part of civil justice, particularly in family and civil commercial
disputes, it tends to be judged by what the court system recognises as a
‘good’ outcome. Mediators working within these settings increasingly talk
about ‘settlement’ as their main priority. At the same time, the adoption by
legal representatives of practices like Collaborative Law9 influences the
nature and purpose of the legal representative. The language of the courts
themselves has changed too. Take, for example, family law, where the
1989 Children Act altered the previous orders relating to children where
parents were divorcing from ‘custody’ and ‘access’ to the less punitive
sounding terms of ‘residence’ and ‘contact’. The Children and Families
Act 2014 introduces Child Arrangement Orders which soften the
terminology still further to purely descriptive terms such as who a child
will ‘live with’ and ‘spend time with.’

Conclusion
I have argued that the increasing use of mediation as a form of dispute
resolution within the civil justice system has blurred the boundaries
between the roles of mediator and lawyer. While mediation is offered
within the civil justice domain by practitioners whose first profession is
the law, there is a risk that its success will be measured by the same
criteria as the courts and its scope limited to that of principled negotiation.
Commentators have highlighted the risk of ‘colonisation’ of both
mediation and arbitration by lawyers working within this setting so that
the original purpose is altered. Development and progression need not be
negative. Indeed, mediators describe the flexibility of the process as one of
its main benefits. However, the risk is that mediation will change beyond
recognition, simply becoming an adjunct of litigation. I have attempted to
demonstrate that mediation presents a real alternative and a fundamentally
different approach to the management of disputes and the perception of
justice. It sets out to create an environment in which parties can view their
conflict differently, build mutual understanding and take responsibility for
the crafting of a solution which is uniquely theirs. Mediation has the
potential to address not just the dispute in question but the future

9
Collaborative Law is a process by which two lawyers agree to work together in a
joint meeting comprising of themselves and the disputing parties, in order to agree
a mutually acceptable settlement. It is characterised by the fact that if these
attempts fail the lawyers cannot then act as legal representatives in court and must
pass the case on, thereby providing an incentive for resolution.
 Delivering Justice 207

relationship of those concerned. These differences in outlook are clearly

illustrated in numerous examples of the way that language is used by
lawyers and mediators to achieve varying purposes.
Bhatia et al. explore the significance of interdiscursivity in this
context, pointing out that “the discourses of dispute resolution now
constitute an intimate and reflexive network of discourses within, and
among which there is considerable contestation and professional struggle.”
(2010:18.) They call for further exploration of these discourses from a co-
operative, multi-disciplinary perspective. In my view this is essential and
urgent. The current blurring of boundaries is unhelpful and results in a
lack of clarity and respect for the real alternatives that these two
professions present. Language helps us to define difference and in doing
so paves the way for interdiscursive debate and the evolution of new
discursive practice.

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—. 1993. Alternative Dispute Resolution and Civil Justice: An Unresolved
Relationship. Modern Law Review 56: 456.
—. 2002. Institutionalized Settlement in England: A Contemporary
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Resolution 10: 19.
Roberts, Simon / Palmer, Michael. 2005. Dispute Processes: ADR and the
Primary Forms of Decision-Making. Cambridge: Cambridge University
Press.
Robinson, Neil. 2012. The Spirit of Family Mediation: Future, Immediate
Past and Present - Part 2: Great Expectations. Family Law 340.
Stokoe, Elizabeth. 2013. Overcoming Barriers to Mediation in Intake Calls
to Services: Research-Based Strategies for Mediators. Negotiation
Journal 29 (3): 289-314.
Tiersma, Peter M. 1999. Legal Language. Chicago: The University of
Chicago Press.
Woolf, Lord Justice. 1995. Access to Justice Interim Report. UK:
Department for Constitutional Affairs.
—. 1996. Access to Justice Final Report. UK: Department for Constitutional
Affairs.
 CHAPTER TEN

THE LANGUAGE OF INSURANCE CLAIMS

ADJUSTMENTS AS PARALEGAL
COMMUNICATION:
ACCIDENT REPORTS ACTING
AS LEGAL DEPOSITIONS

GLEN MICHAEL ALESSI

Background
Situational context
In the United States, insurance claims adjusters are hired by insurance
companies as independent agents, to investigate car and personal injury
accidents in order to establish responsibility and to determine victim
compensation. The adjusters first interview victims in person or via
telephone, in order to establish an accurate account of events. Later, they
produce a report from the recordings, summarizing the victim’s testimony
and evaluate the reliability of the victim’s testimony. Insurance companies
then use this information to ascertain damage liability and calculate
financial compensation. Adjusters are expected to provide impartial
judgement in accurately reporting the dynamics of the accident, providing
full context and chronology.
The adjuster’s assessment interview and accident report summary
present several areas of interest for linguistic analysis. The information
gathered by the adjuster from the policy holder (as client and victim) and
for the insurance company (as service provider and compensator) is in a
business context, but when examined closely, appears to share discursive
practices common with legal or paralegal procedures. The first part of this
study, appearing in published form in Alessi (2013), focussed on paralegal
communication during the insurance adjuster’s telephone interviews, and
210 Chapter Ten

revealed questioning techniques which mirrored strategies similar to those

found in police interrogations. This study is a continuation of that work,
and intends to provide an overview of the generic moves and lexico-
grammatical features found in the adjuster’s incident report summaries
which reveal the paralegal or quasi-legal discursive practices found in
them.
While the assessment interview, largely semi-scripted, relies on a
variety of question types often associated with questioning or
interrogations, the report it produces may also be considered a paralegal
façade; discursively performing in part like the insurance company’s own
deposition summary or a police report or following the moves of a legal
case presentation. Unlike a normal legal deposition, which is a
representational transcription of the interview / interrogation, the claims
report is a summary of the facts and testimonies, with added evaluations
and recommendations. So, while recounting what happened, the report can
also add interpretation; this is accomplished mostly through lexico-
grammatical choices made between vagueness or precision, fact or
estimation, and which indirectly pronounce accusations or judgements, as
found in legal cases discussed in Bhatia (1993).

Research Questions
Areas of language enquiry addressed in this study ask from the point of
view of critical genre analysis whether discursive practices of insurance
adjusters reflect intertexutality and interdiscursivity as outlined in Bhatia
(2010a); and whether these practices are demonstrably ‘paralegal’. The
term paralegal is open to interpretation and localized meanings, but is used
here in its broadest sense, as non-lawyers engaged in legal work, where the
adjuster, working as a commercial investigative agent, simulates or shares
discursive practices commonly thought of as associated with by law
enforcement officers or lawyers. According to Bhatia’s framework,
intertexuality would be created by adjusters when replicating
communicative practices already used by police or lawyers during
interrogation and deposition procedures through “The use of prior texts
transforming the past into the present often in relatively conventionalized
and somewhat standardized ways” (Bhatia: 2010a: 35). The adjuster’s
reports, written for private sector commercial contexts, appear to colonize
terms and phrasings from legal discourse. These lexico-grammatical
borrowings impose asymmetry and authority and are assumed to provide a
more legally defendable and less contestable interpretation of testimony.
In terms of intertextuality, it would appear that assessment interviews and
 The Language of Insurance Claims Adjustments 211

evaluative reporting produced by private sector insurance companies have

exploited and appropriated linguistic resources associated with legal
genres, resulting in what generically might be considered paralegal
hybrids. Mediators, lawyers, adjusters and victims themselves may or may
not necessarily be aware of this shift in role as realised in the
communicative practices. Behind these practices stands the policy
provider (the insurance company) who, when faced with establishing
compensation, discursively assumes a distant and less accommodating
stance towards the client/victim – one which is more readily associated
with accusation and one which reflects paralegal discursive practices
defensively adopted by the insurance industry.

Existing Literature and Previous research

Existing studies on insurance adjuster reports were not available,
however relevant genre-related studies regarding reports in other
professional settings were examined, included Flowerdrew’s (2008)
exploration of discourse -based moves in professional reports; Singh et.al.
(2012) who look at work procedure guidelines; in addition to paralegal
discourse examined in adjuster interview/interrogations as depositions in
Alessi (2013).
Earlier examples of non-linguistic investigations relating to paralegal
practices of insurance adjusters include Ross’s 1970 volume Settled out of
court: The social process of insurance claims adjustments, where the role
and relationship of the adjuster is examined in relation to the claimant’s
lawyer. Another study accusing insurance companies of paralegal practice
was argued in Michael C. Jordan’s 1986 title Unauthorized Practice of
Law by Insurance Claims Adjusters, which explored the encroachment or
duplication of roles assumed by the adjuster which are thought to be
exclusive to licensed legal practice. In a radical stance which favours this
paralegal role, Ben-Shahar and Logue (2012) go so far as to claim that
outsourcing of legally governed safety regulations to insurance companies
– including “verifying outcomes and assessing remedies” - as practiced by
adjusters - has potential value, and “could outperform the government in
setting standards ... in the areas of consumer protection, food safety and
financial statements,” standing overtly in favour of appropriating the
industry itself and its operators with legal authority.
Arguments which focus on aspects of legal discourse from a critical
point of view, and in particular the role of attributors, which feature widely
in both the adjuster’s interviews and report summaries, are addressed in
Matoesian (2001). The author claims
212 Chapter Ten

using reporting speech as an epistemological device to undermine

the witness’s credibility is the most dramatic trial technique in the
attorney’s arsenal (Matoesian 2001: 105).

and sustains that “reported speech is crucial not only in an evidentiary but
also in an affective sense” as a form of “persuasive verbal strategies”
(Matoesian 2001: 105). Matoesian refers primarily to language of legal
defence in court; but similar claims could equally be made of reporting
markers chosen by adjusters in attributing accident responsibility in claims
report summaries. Matoesian invests reported speech with the ability to
project onto an “extralinguistic reality in an ideological drive of reference”
leading to “strategic forms of discursive power which manipulate evidence
in testimony” (Matoesian 2001: 132). In the case of the adjuster’s
interviews and report, it is this recontextualisation of spoken discourse via
use of attributors which hold them as acting evaluatively both in
recounting the chronology of events as well as evaluating and possibly
misrepresenting the truth value of the victim’s testimony.
Evidence of intertextuality and interdiscursivity were explored in the
first part of this research, as mentioned in Alessi (2013), a study which
dealt with adjuster-victim telephone post-incident interviews as tending
toward interrogations and depositions where adjusters appeared to employ
question types, tags, fillers, repetition, expressions of certainty, topic-
fronting, back-channelling and turn-management, as used for similar
purposes as those used by police and lawyers while interviewing clients
/victims. Adjusters were seen to mimic practices already in force by police
and lawyers during interrogation and verbal deposition procedures and
assessment interviews exploited and appropriated resources associated
with existing legal genres to creating a paralegal hybrid: as outsiders
posing as, but unable to claim, legal authority.
This study has considered working definitions of workplace and
professional discourse practices as illustrated in Drew and Heritage
(1992), Koester (2010), Gunnarsson (2009). Theoretical frameworks were
based on genre analysis in Bhatia (1993, 2010a, 2010b), corpus assisted
discourse studies in Partington et al. (2013) and genre analysis of legal
discourse in Wolch Rasmussen and Engberg (1999) along with
ethnographic applications via interviews and correspondence with
adjusters. Software tools employed include Wordsmith Tools, Scott (2012)
and Sketch Engine, Kilgarriff (2014).
 The Language of Insurance Claims Adjustments 213

Materials and methods

The corpus for analysis consisted of 400 adjuster-written
assessment/evaluation accident reports, averaging 3 pages of 1,800 fonts
per page text each, comprising 795,674 tokens. The adjuster anonymised
all information in the transcriptions and reports regarding identity of
persons, places or events, before allowing access for analysis. The
interviews and reports were produced by one or more independent
insurance adjustment agents, and in some cases may have been mediated
by secretarial help in final production. The adjusters involved considered
them highly representative of the type of reports in circulation, and the
reports were deemed objective, reliable, accurate and neutral by the
insurance companies who commissioned them.
The analysis relied on manual close readings of the reports for
identifiable moves and lexico-grammatical characteristics. Of particular
interest were the variety and sequence of reporting verbs in reports, given
their propensity to signal evaluative choices in attributing responsibility.
No detailed quantitative analysis or use of a reference corpora was made
with regard to frequency, keyness, collocation or communicative function.
The study presented is limited to identifying relevant generic moves and
regularly occurring lexico-grammatical elements in the report which may
be operating indiscursively and paralegally.

Insurance Adjuster Summary Reports – Defined

Summary reports are largely based on reformulations of the recorded
telephone interview and contracted by the insurance company from the
adjuster as third-party expert and impartial investigator. The interviews
themselves replicate much of the language found in legal depositions,
while the write-up in report form presents a once removed narration of the
events. These ‘interview summaries’ accounted for in the reports,
however, also have potential external readership, and can be required in
mediation, arbitration or court hearings, and share qualities in both form
and function with lawyer-written legal deposition summary reports.
Adjuster summary reports addressed in this study were written using
information gathered from recorded telephone interviews. The reports vary
in length, from an average of 250 - 600 tokens, in the case of minor
vehicle collision incidents, to as many as circa 8,000 tokens in physical
injury or general liability reports, for incidents which may be under
criminal or civil investigation. General liability reports potentially include
more moves, details and various witness testimonies. Structurally, the
214 Chapter Ten

reports provide a brief synopsis of the incident, followed by detailed

conditions and chronology of events based on victim and witness testimonies,
including the adjuster’s evaluation of the testimonies of the interviewee and/or
witness, and conclude with comments and recommendations.
In both types of report summaries, vehicle collision and general
liability, the macrostructure is relatively fixed, eliciting first personal
information and factual narration of the events, then followed by more
tentative interpretations and evaluations which include mention of the
victim/interviewee’s lack of recall, doubts or hedging. For the sake of
simplicity, and not to lose sight of this study’s objectives, no distinction
will be made between general liability accidents and vehicle accident
reports. Considerations were given to obligatory moves only, neglecting
optional categories, subcategories and steps.

Insurance Adjuster Summary Reports - Move Structure

Following a shortened and generalized analysis, combining relevant
steps from Bhatia’s (1993) and Biber et al’s (2007) approaches to genre-
discourse analysis, 400 reports were first scanned and categorized
according to type (liability or vehicle) followed by a selection of ten of
each category which contained the most standardized, reliable and
representative examples. These reports were examined for obligatory and
optional moves. The reports themselves carried pre-marked categories, in
flexible template format, organized by discourse units which labelled
stretches of text serving specific communicative functions. The most
representative and standardized categories that appear in all of the reports
were collected and listed (see fig. 10-1) as obligatory moves (as indicated
in bold type), along with corresponding non-obligatory (optional elements
in normal type), which were chosen when the specific case required them.

Move 0: Case Identity

Move 1: Brief Synopsis
Move 2: Facts of Loss
Property Damage
Description of loss area
After the impact
Post incident
Injuries and losses
Medical Care
Current Complaints
Prior injuries and losses
 The Language of Insurance Claims Adjustments 215

Facts / Mechanics of injury

Loss of Earnings
Notice / Notification
After the incident
Other witnesses

The Claimant
Claimant & Injuries
Other Information
Witnesses

Move 3 : Witness evaluation

Move 4 : Comments
Other activity
Conclusions and future plans
Recommendations
Closing

Enclosures
Injury photographs
Scene photographs
Police Reports  

Figure 10-1 Adjuster Report: obligatory and optional moves

The overall rhetorical purpose of the genre is to recapitulate in

summary format a third-party impartial account of the accident, which
includes evaluations and recommendations, subsequently used by the
insurance company to determine whether compensation should be
awarded, and if so, how much. The reports are commissioned by the
insurance company, and are superimposed as letter format; thus posed as a
report and as an instance of business correspondence, including formulaic
letter opening and closings. The contents and motivations are primarily
investigative, as in police reports, in that they reconstruct events, but also
evaluative, since they are based on the adjuster’s expertise and experience
in selecting relative events, narrating them, and making recommendations.
Not considering the case identity, address, date and formulaic opening of
the letter, the reports are sequenced into four general communicative
purposes or moves which can be considered obligatory. These categories
(in bold type) are those, which are standardly used in the reports, and are
followed by the move descriptions:
216 Chapter Ten

1. Brief Synopsis: Identifying the case and summarizing events.

2. Facts of Loss: Establishing the facts of the case.
3. Witness Evaluation: Evaluating truth-value of testimonies.
4. Comments/Other Activity: Conclusions and recommendations.

Similarities can be drawn when comparing these moves to Bhatia’s

(1993) four-move model of legal cases. The italicized parts below reveal
their common generic features.

1) Identifying the case

2) Establishing facts of the case
3) Arguing the case
(a) Stating history of the case
(b) Presenting arguments
(c) Deriving ratio decidendi (i.e. the principle of law for possible
use in later cases)
4) Pronouncing judgment

It should be noted that an actual legal deposition would not include

argumentation (as in Bhatia’s moves 3 and 4), and would provide only
transcribed description. The adjuster’s report, instead, includes descriptive,
evaluative and prescriptive discourse as in Bhatia’s four-move model, and
can be thought of as argumenting a case and making indirect pronouncements,
even if out of court.

Descriptions and examples of obligatory moves in detail

The illustrative moves below were chosen based on their completeness,
their brevity and their lexico-grammatical features, which can be
considered highly representative of the corpus of reports. What follows are
summary descriptions of each move, followed by actual examples from
the corpus, and a brief analysis of noted features.

Move 1: Brief Synopsis - establishing context and events

The ‘brief synopsis’ generally summarizes what happened in terms of
who, what, when and where. Using the adjuster’s expertise, it provides
context and interpretation needed by the insurance company. It functions
as an executive summary or abstract, providing the reader with immediate
familiarization with the case. This first move identifies, labels and
categorizes the case and is more than often organized using a situation,
 The Language of Insurance Claims Adjustments 217

problem, and solution macrostructure. This move relies heavily on

formulaic phrasings and extensive lexico-grammatical borrowings from
legal discourse (as seen in italics), and makes wide use of direct quotation
as well as potentially accusative evaluative modifiers and attributors (as
seen in bold type).

Dear Ms. Kiel:

Pursuant to your instructions, this will serve as our final report. As
discussed, our investigation was conducted per your direction and in
anticipation of litigation. Thus, this report is confidential.

Brief Synopsis
This loss involves a female member slipping on water created by a
window-tinting vendor. The claimant retained an attorney who pursued a
claim against the insured and vendor. The liability carrier for the
window-tinting vendor, Tinter Family, has agreed to attempt to resolve
the claimant’s pending claim. However, if this matter litigates, there is no
hold harmless or indemnification agreement with the vendor, and the
insured would likely be served with a lawsuit per the aggressive nature
of the claimant’s attorney.

Example 1 General Liability Case

Analysis of Brief Synopsis: the report begins with a formulaic

‘correspondence’ opening - specifically naming the client and intended
reader. The presence of interpersonal (your, our), diectic and
metalinguistic references (this, final report) and procedural terms
(instructions, investigation, direction, litigation) refer to mutually shared
knowledge and provide context in establishing roles and obligations. Legal
linguistic formulae (persuant to, per, no hold harmless or indemnification,
agreement, pending claim, litigate, lawsuit) convey authority, expertise
and asymmetry. Both ‘will’ and ‘thus’ act commissively by obliging
compliance, while also enforcing an implied legal disclaimer/warning in
the case of any breeches in confidentiality. The synopsis section widely
uses impersonal subjects denoting the ‘institutional voice’ via established
legal ‘identities’, which also define the parties in the retelling (member,
insured, vendor, claimant, liability carrier, attorney). Explicit reference to
the company, in terms of role (window tinting vendor) and name (Tinter
Family), are made in order to avoid ambiguity. Evaluative hedging
(agreed to attempt, would likely be served) along with intentionally
218 Chapter Ten

vague terms (resolve, this matter, aggressive nature) is used to ensure

flexible interpretation by the insurance company.

Move 2: Facts of Loss - Summary of interview testimony

of events
The ‘facts of loss’ section documents the adjuster’s interpretation of
the events as retold from the telephone interview. Rather than being
formatted as a transcription, as is typically found in a deposition, the same
information is reformulated by the adjuster into his/her own interpretation
of events through choosing categorical, precise, vague or even evaluative
and occasionally accusative lexical choices, realized through specifically
chosen terms, phrasings and tenses (as seen in italics). The attributors (as
seen in bold type) which were chosen, play a key role in establishing the
adjuster’s stance and victim’s responsibility. Attribution varies from the
neutral use of ‘states’ or direct quotation, to more tenuous evaluative
attributors (e.g. contends, claims etc.) or ones which carry negative
semantic prosody, such as admits. The choice of attributors is a key factor
in assigning blame or opening issues of contention in the investigation and
orients the reporting towards more of an investigative role. Attributors
may reveal an adjuster’s bias, but can just as easily accurately reflect what
was said, including levels of uncertainty on the part of the witness/victim.

Facts of the Loss

Ms. Hoch states the loss occurred on 10/3/XX at 4:30 a.m. in the common
(grass) area adjacent to the pool. She describes weather conditions as
“dry & clear”. Ms. Hoch states she typically goes to bed at 6:30 p.m. and
wakes up around 2:00-3:00 a.m. She contends this is her regular sleeping
pattern. Ms. Hoch states she decided to take her dog (Terry) for a walk, as
well as, to check her mailbox. She states her dog was on a leash. She
can’t recall which hand held the leash. She denies carrying anything else.
She was alone. She admits to commonly walking outside late at night. Ms.
Hoch states the loss occurred as she was walking back to her residence
from the mailboxes.

Example 1 Liability Case

Facts of the Loss

Mr. Monti was driving his 1995 Toyota Camry southbound in what he
claims is a middle lane of three southbound lanes on 25th Avenue. He was
on his way from the bank to his residence. The accident occurred about
 The Language of Insurance Claims Adjustments 219

four car lengths prior to the intersection with Speedway Boulevard, which
is regulated by a traffic signal. He claims the subject traffic signal was
“green” for his direction. It was his intention to turn right at the upcoming
intersection.
Mr. Monti states he was going about 47 mph. The claimant vehicle was
going about the same speed. The claimant vehicle was in the lane to his
right and behind him. As he made his lane change into the right lane, the
impact occurred. Mr. Monti states the impact occurred as the
passenger/front wheel of his vehicle were just into the far right lane when
the impact occurred. He estimates his speed at 40 mph at impact. He feels
the claimant vehicle was going faster than him and moving into his lane
just as he was moving into her lane. He saw the claimant vehicle in the far
right lane and behind him prior to moving into the far right lane. Mr.
Monti states the driver’s front fender of the claimant vehicle struck the
driver’s rear quarter panel of his vehicle.

Example 2 Vehicle Accident Case

Analysis of Facts of Loss: In both examples of this move we see the

disappearance of the institutional voice, which is used widely in the first
move, in order for the victim/client’s allegations to be presented. Every
element belonging to this section is attributed to the victim/client and even
though it is mediated by the claims service adjuster, and is an
interpretation, not to be confused as being a transcription of the original
recorded statement. This section is argumentatively signalled by the
occurrence of reported speech, which varies from factual-neutral (states,
describes, denies, saw) to more tenuous, interpretative or evaluative
choices of attributors (claims, estimates, admits, contends), which act as
interpretations imposed on the narrative by the adjuster and identify events
that he/she thinks might still need verifying.

Move 3: Witness Evaluation - Evaluation of witness testimony

Witness evaluation demonstrates shared discursive purposes and
content with investigative police reports, which often require expert
opinion to establish the “corpus of the crime” (Biggs 2012: 102). In this
case the move turns from the victim’s or witness’ testimony and from the
narrated facts, to the adjuster’s interpretation of testimony itself, rating it
in terms of above, below or average credibility. Witnesses or victims are
judged on recall of events, character, level of articulation and reasoning.
Listed below are three levels of evaluation with their respective ratings.
220 Chapter Ten

Legal lexis is used minimally, whilst evaluative language (in italics) along
with attributors and assumptions (in boldface) dominate this move. The
information contained primes the next and final move for conclusions and
recommendations, preparing for implied pronouncements or judgements as
the adjuster assumes a non-legally mandated ‘Expert Opinion’ stance.
Ms. Clements had an average recall of this loss. She spoke very good
English. She spoke openly and directly. Her attorney did not interrupt
during the majority of the statement. Ms. Garin had a good recall of most
issues with the exception of the spill. She had a difficult time describing the
size of the spill. She claimed the spill was “large” but later it consisted of
$.25 size drops over 2-to-3 floor tiles. She feels the spill was on the floor a
long time because the liquid was “cold” and sticky. However, she admits
the spill was still in a liquid form and not completely dry. She also states
there were footprints through some of the drops of the spill; another
indication the spill was on the floor for a while. Finally, she claims the
Manager said, “This must have been here awhile; it is sticky”.
Otherwise, she does not know of the origin or duration of the spill.
Overall, we evaluate Ms. Clements as an average witness on her own
behalf and in the presentation of her claim.

Example 1 Witness Evaluation - AVERAGE

Mr. Brown’s recall of this loss is average to below. He claims to have

seen the claimant vehicle behind him and in the lane to the right where he
attempted to make a lane change. The impact occurred just as he moved
into the claimant’s lane. He feels the claimant was passing him and
moving into his lane, but this is supposition on his part. The insured was
very confusing when explaining how the accident was the claimant’s fault
as he made a lane change into the claimant’s lane. Also, the alleged
witness is a friend of the insured and the claimant denies the existence of a
witness.

Example 2 Witness Evaluation – BELOW AVERAGE

Ms. Sanders comes across very well. She sounds a lot more believable
than the insured. It is very telling that the insured did not want the police
involved and he allegedly used her cell phone to report the accident to his
insurance company from the accident scene. If the insured were not at
fault, as he claims, why would he call his insurance company and avoid
the police. These two issues impede the insured’s credibility.
 The Language of Insurance Claims Adjustments 221

Example 3 Witness Evaluation - ABOVE AVERAGE

Analysis of ‘Witness Evaluation’ section: Whereas the first sections are

extremely detailed, this is not the case for witness evaluation. Here we find
some of the same content repeated, albeit filtered through the ‘evalutative
net’ of the ‘institutional voice’. While the Facts of Loss move provides for
virtually all details of the case, the Witness Evaluation move is restricted
to the facts which bear real legal significance, or those which will later, in
court, be examined in terms of ‘who is liable for what’. The importance of
the ‘institutional voice’ in mediating between the layperson’s account of
the facts and the eventual use of the text by the courts is discussed in
O’Barr and Conley’s (1985) mention of the frequent incapability of
‘unrepresented’ citizens to give a legally appropriate account of facts in
court, which according to the authors, helps explain failure by individuals
to win even obvious disputes. Judgement of character and testimony is
framed in tenuous or categorical suppositions and evaluations (feels,
claims, attempted, alleged, sounds, allegedly, very confusing, very telling)
along with reported facts (moved, supposition on his part, denies, did not
want, impede). All reporting is ‘graded’ according to the adjuster’s
personal interpretation of witness reliability, and categorize the
client/victim or witness in terms of how their case should be treated by the
insurance company.

Move 4: Comments/Other activity -

Conclusions and recommended actions
Comments and other activity move can be alternatively labelled as
Comments/Closing. This move, which is the most varied and least
predictable in terms of content or purpose, ties up the investigation with
concluding remarks in terms of what was discussed and what needs further
discussion. The amount of details and contents are case-specific and vary
according to individual circumstances. However, as can be seen in the two
examples provided (see ex. 1 and ex. 2 below) each begins with an
opening statement, which labels or categorizes the case, at the same time
defining it and suggesting actions to be taken. In this way this ‘move’
discursively realizes Bhatia’s fourth ‘move’ of pronouncing judgment in
legal cases. Neither the adjuster nor the insurer carries full legal authority,
but the pronouncements are made to direct blame or guide further action to
be taken. Conclusive actions are made in terms of suggestions rather than
legally sanctioned judgements. This move depends heavily on the use on
legal phrasing and lexis (in bold type), and includes reflective evaluations,
222 Chapter Ten

which serve as solutions, judgements or pronouncements (in italics). This

final move concludes with formulaic closings found typically in business
correspondence.

Comments/Closing
Based upon the insured’s limited recorded statement, it appears this
loss should be tendered to the insured’s employer, Mohamed Abib, 998-
667-238. We would suggest providing this information to the claimant or
claimant carrier for pursuit of their pending claim. Upon receipt and
review of this report, please contact the undersigned if you have any
questions or further instructions. Otherwise, we thank you for this
opportunity to have been of service to you, the named insured, and
UNITRIN.

Example 1 Liability Case

Comments / Other activity

At this time, we have concluded our investigation of the subject loss.
We have ruled out injuries to the insured driver and determined the
claimant (Claire Lederman) is 100% at fault for this accident for an
“unsafe lane change” by sideswiping the insured vehicle while it was
stopped in the left turn only lane. Subrogation for any collision
payments should be pursued against the claimant carrier, Allison. The
claimant’s medical condition (diabetes) is a known medical condition,
and the claimant cannot cite it as a defense to her liability for this
incident. As always, we thank you for this opportunity to have been a
service to you, the named insured and UNITRIN.

Example 2 Vehicle Accident Case

Analysis of conclusions and recommended actions: The final section

appears mostly metadiscoursal, in it provides little further testified
information regarding the case, and describes what will happen next, thus
directing the attention of the hypothetical reader outside of the texts which
preceded it. In the first example, like in witness evaluation testimony,
evaluative and subjective adjectives are used (appears, should, suggest,
please contact) in contrast with the impersonal stance used via the
institutional voice. At the same time here ample reliance on legal
phrasings and terms (in bold) as well as use of ‘we’ once again introduce,
if not impose, the institutional voice. The second example provides a
clear-cut example of judgement being taken. It relies on the institutional
 The Language of Insurance Claims Adjustments 223

‘our ‘, established roles (claimant, carrier, subject loss, insured driver,

named insured) with added explicit identification (Claire Lederman),
numerical reinforcement for certainty and asymmetry (100% at fault),
reporting by direct quotation “unsafe lane change “and the predominant
use of legal phrasings and categorical certainty in assigning blame. The
epistolary formulaic ending compliments the opening salutation.

Further observations on attributors

As already noted earlier, a key lexical choice featured in expert witness
sections as well in all four moves of the adjuster’s report is the choice of
attributors. A closer look provided by concordance lines culled from
Sketch Engine, revealed sentences with the neutral reporting verbs ‘states’
or ‘ said ‘ can be often seen followed by sentences reporting with ‘claims’,
‘thought’ ‘considered’ or ‘assumed’. These reporting verbs may
unknowingly qualify information reported in the previous sentence as
being tenuous, which, in turn, may attribute the report with negative
witness evaluation and imply or assign blame by denying victim
compensation. This happens when the adjusters notice lack of recall,
doubting or hedging on the part of the interviewee/victim.
Efforts taken by the adjuster to selectively reframe the claimant’s
averrals or assertions, with pre-modification can be seen in the in the
example: “Of importance, Mr. Jones states the following...”; where the
adjuster might actually (and unknowingly) be providing a biased recount
of the claimant’s neutral statements when using this preface. Though
‘states’ and ‘said ‘ were the most widely used reporting verbs, less neutral
‘admit’, ‘contend’ ‘feel’ and ‘deny’ were also chosen. The use of these
more tenuous attributors could imply that the claimant is being made to
admit, contend or deny by way of the adjuster who has superimposed
his/her own narrative onto the report. There is also the an inherent
ambiguity in the choice of ‘feel’ when used as an attributor, which here
seems to undermine the veracity of the statements attributed to the
claimant.
‘States’, though assumed to be a neutral, less tenuous reporting verb
when preceded by ‘claimant’, often appears primed for mostly negative
and increasingly tenuous information.
224 Chapter Ten

Figure 10-2 Concordance lines

‘Admits’ regularly introduced situations which are revealed as somehow

compromising or situations, which could be considered contradictory or
contrary to innocence.

Figure 10-3 Concordance lines

‘Presumes’ reports mostly non-verifiable information and a lack of witness

credibility or possibly a vague or inaccurate reconstruction of events.
 The Language of Insurance Claims Adjustments 225

Figure 10-4 Concordance lines

Conclusions
Initial conclusions position the communicative processes as moving
from gathering and reconstructing of factual information via assessment
interviewing techniques to a final interview-based investigative summary
report mediated by the adjuster. While the interview may in some ways
appear to the interviewee as being similar to a police interrogation or a
legal deposition (Alessi: 2013), the insurance adjuster’s written reports
have the dual, if not conflicting functions of assembling facts and
evaluating reliability of witness testimony, thus reporting, narrating,
investigating and expertly passing judgement. The reports appear to mirror
elements of conventional and standardized moves found in Bhatia’s four
move legal case analysis (Bhatia: 1993), and rely heavily on lexico-
grammatical and generic borrowings from investigative practices found in
the disciplinary cultures and discursive procedures of law and law
enforcement.
The type of evaluative language employed by the adjuster, as best seen
in the choice of reporting verbs when applied to witness reliability, may
indirectly assign or announce accident liability and blame. While the
communicative purposes may appear straightforward to all parties as the
fulfilment of standard business procedures, the report’s discursive features
place it soundly within professional and organizational discourse practices
common to law and law enforcement.
The transformation from oral interview-interrogation into written
investigative reports results in a generic hybrid, which draws intertexuality
226 Chapter Ten

and interdiscursivity from legal genres. While attempting to appear as the

result of non-judgement fact-finding aimed at producing an accurate and
unbiased account of events in a business-to-client relationship, the reports
in actual fact share discursive practices commonly thought of as associated
with by law enforcement officers or lawyers, aimed at defending, blaming
or convicting, and should be viewed more accurately as investigative
paralegal discourse.

Bibliography
Alessi, Glen Michael. 2013. The Language of Insurance Claims
Adjustments Interview or Interrogation. In Poppi, F. / Cheng, W.
(eds.), The Three Waves of Globalization (23-36). Newcastle upon
Tyne: Cambridge Scholars Publishing.
Ben-Shahar, Omri, Logue / Kyle D. 2012. Outsourcing Regulation: How
Insurance Reduces Moral Hazard. Retrieved November 7, 2014.
Bhatia, Vijay. K. 1993. Genre Analysis: Theory, Practice and
Applications. Burnt Mill, Harlow, Essex: Longman.
—. (2010a). Interdiscursivity in Professional Communication. Discourse
& Communication 4(1): 32-50.
Bhatia, Vijay K. / Flowerdew, John / Jones, Rodney H. 2010b. Advances
in Discourse Studies. Journal of Sociolinguistics 14(1): 153-56.
Biber, Douglas / Connor, Ulla / Upton, Thomas A. 2007. Discourse on the
Move: Using Corpus Analysis to Describe Discourse Structure.
Amsterdam: John Benjamins Publishing.
Biggs, Michael. 2012. Just the Facts: Investigative Report Writing. Upper
Saddle River, NJ: Prentice Hall.
Drew, Paul / Heritage, John. 1992. Talk at Work: Interaction in
Institutional Settings. Cambridge: Cambridge University Press.
Gunnarsson, Britt-Louise. 2009. Professional Discourse. London:
Continuum.
Jordan, Michael. C. 1986. Unauthorized Practice of Law by Insurance
Claims Adjustors. Journal of the Legal Profession, 10: 171-188.
Kilgarriff, Adam / Baisa, Vit / Bušta, Jan / Jakubíþek, Miloš / KováĜ,
VojtČch / Michelfeit, Jan / Rychlý, Pavel / Suchomel, Vit. 2014. The
Sketch Engine: Ten Years On. In Lexicography ASIALEX: 1 (1): 7-36.
Koester, Almut. 2010. Workplace Discourse. London: Continuum.
Matoesian, Gregory M. 2001. Law and the Language of Identity Discourse
in the William Kennedy Smith Rape Trial. Oxford: Oxford University
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O’Barr, William M. / Conley, John M. 1985. Litigant Satisfaction versus

Legal Adequacy in Small Claims Court Narratives. Law & Society
Review 19(4): 661.
Partington, Alan / Duguid, Alison / Taylor, Charlotte. 2013. Patterns and
Meanings in Discourse: Theory and Practice in Corpus-assisted
Discourse Studies (CADS). Amsterdam: John Benjamins Publishing.
Poppi, Franca / Cheng, Winnie (eds.) 2013. The Three Waves of
Globalization. Winds of Change in Professional, Institutional and
Academic Genres. Newcastle upon Tyne: Cambridge Scholars
Publishing.
Ross, Hugh L. 1970. Settled out of Court: The Social Process of Insurance
Claims Adjustments. Chicago: Aldine.
Scott, Mike, 2012. WordSmith Tools version 6. Liverpool: Lexical
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Singh, Manvender Kaur Sarjit / Shamsudin, Sarimah / Hanafi Zaid,
Yasmin. 2012. Revisiting Genre Analysis: Applying Vijay Bhatia's
Approach. Procedia. Social and Behavioral Sciences 66: 370-79.
Wolch Rasmussen, Kirsten / Engberg, Jan. 1999. Genre Analysis of Legal
Discourse. Journal of Lingustics 22: 113-132.
 PART IV:

LEGAL DISCOURSE IN INTERNET-ENABLED

COMMUNICATION
 CHAPTER ELEVEN

REPUTATION MANAGEMENT
AND THE FRAUDULENT MANIPULATION
OF CONSUMER REVIEW WEBSITES

WILLIAM BROMWICH

Introduction
In the global economy even small and medium-sized enterprises are
increasingly reliant on the reputation they manage to establish for
themselves on consumer-review websites such as Google, TripAdvisor,
Yelp, Citysearch and Yahoo, in order to attract new customers from
around the world. The user-generated content on such consumer websites
and in the social media in general can have a devastating impact on
company reputation, and even carefully stage-managed operations such as
the JP Morgan Q&A forum on Twitter can backfire in spectacular fashion,
with the company management beating a hasty retreat. In response to
critical consumer reviews and ratings, and in defiance of the codes of
conduct laid down by the consumer-review sites, there appears to be a
trend towards companies engaging in covert public relations and
marketing operations known euphemistically as “reputation management”,
that may involve putting pressure on their employees to post
“spontaneous” comments, as well as paying (anonymous) freelance writers
to disseminate fake reviews on TripAdvisor, Yelp and other social media.
It is debatable whether these covert operations are protected in the USA by
the First Amendment, or whether they may be subject to criminal
proceedings under consumer protection and anti-fraud legislation. The
focus of the present chapter is the action taken in this connection by the
New York State Attorney General, Eric T. Schneiderman, to sanction the
fraudulent activities of companies disseminating fake reviews, resulting in
penalties and the requirement to sign a formal Assurance of
Discontinuance. A genre theory perspective is adopted to examine the
issues arising out of this case, identifying elements of interdiscursivity in
 Reputation Management and Consumer Review Websites 231

the press release of the Attorney General in his attempt to enforce the law
while constructing a public persona analogous to that of a political leader.
The role of the Attorney General is highly specific to the US legal system,
as there does not appear to be an exact equivalent in other Western legal
systems. In investigating this case, the study will be structured as follows.
Section 1 will examine the question of fake reviews in the social media.
Section 2 will consider the institutional framework within which Attorney
General Schneiderman seeks to address the issue of fake reviews. Section
3 will then examine the Attorney General’s press release in some detail,
highlighting further instances of interdiscursivity in the resemanticization
of the terms used in the fake review websites, as part of the attempt by the
Attorney General to transfer these concepts from the domain of web-based
communication to the domain of law. Section 4 concludes the discussion.

The question of fake reviews in social media

The rapid rise of consumer-review websites in recent years has become
evident in many domains, based on the principle of crowdsourcing. Yelp,
the US-based website now gaining ground in Europe, specializes in local
business reviews, and claims to be “the best way to find great local
businesses” with reviews on “Restaurants, Food, Nightlife, Shopping,
Bars, Cafes, Gastropubs, Health & Medical, Beauty & Spas, Local
Services, Home Services, Automotive, Arts & Entertainment, Hotels &
Travel, Public Services & Government, Active Life, Event Planning &
Services, Local Flavor, Education, Religious Organizations, Professional
Services, Mass Media, Pets, Financial Services, and Real Estate”. The
website is now so well established that “to yelp” is used to mean “to write
an online review”, as in the International New York Times headline
(September 24 2014: 19): “Hotels take heed when guests yelp”. The latest
figure for the market capitalization of Yelp Inc (based in San Francisco
and founded in 2004) is USD 5.30 billion1 yet arguably without its
extensive database of user-generated consumer reviews it would be
practically worthless. The integrity of the reviewers and the reliability of
their opinions are fundamental for the success of the company.
TripAdvisor is another leading consumer-review website that has
emerged in recent years to become a brand name with international
recognition, with a claim to be the world’s largest travel site:

1
http://www.marketwatch.com/investing/stock/yelp accessed 24 September 2014.
232 Chapter Eleven

The world’s largest travel site

Plan and have your perfect trip with TripAdvisor, the world’s largest travel
site. Browse over 170 million candid reviews, opinions, and photos of
hotels, restaurants, attractions, and more – all by travelers like you. You’ll
also find low airfares, free travel guides, worldwide vacation rental
listings, popular forums with advice about virtually every destination, and
more. No wonder so many travelers make TripAdvisor their first stop
before every trip.2

Once again, the 170 million “candid reviews” are the most important
asset for the business and starting from this user-generated content
TripAdvisor has achieved a market capitalization of USD 13.16 billion.3
The wide range of travel information and services is impressive, as shown
by the following list:

TripAdvisor Sites
o Book luxury hotels on JetSetter
o See expert hotel photos on Oyster.com
o Read cruise reviews on Cruise Critic
o Read travel guides at SmarterTravel
o Get airline seating charts on Seat Guru
o Find airfare deals at Airfarewatchdog
o Share travel tips at VirtualTourist
o Create a travel blog on TravelPod
o Find vacation rentals on FlipKey
o Search for holiday rentals on Holiday Lettings
o Find a vacation home on Vacation Home Rentals
o Plan a family vacation on Family Vacation Critic4

The TripAdvisor business model encourages users to provide feedback

about a range of services and, based on these reviews and ratings,
bookings can be made for hotels, cruises and vacation rentals, thus
generating revenue. The market capitalization of the company currently is
considerably more than Yelp, but only a small fraction of Google, that has
the second largest market capitalization in the United States (after Apple)
at USD 400 billion.5
The advent of the internet initially held out the promise of a brave new
world in which consumers could connect directly with suppliers anywhere

2
www.tripadvisor.com accessed 20 June 2014.
3
http://finance.yahoo.com/q?s=TRIP accessed 20 June 2014.
4
www.tripadvisor.com accessed 20 June 2014.
5
http://www.businessweek.com/articles/2014-02-12/google-at-400-billion-a-new-
no-dot-2-in-market-cap accessed 24 September 2014.
 Reputation Management and Consumer Review Websites 233

in the world without using an agency, a process known as disintermediation.

It has been claimed that “Travel was one of the first industries to be
disintermediated by the internet”6 but this overlooks the differences
between various sectors of the travel industry: whereas the airline industry
has largely achieved disintermediation, eliminating the commission paid to
travel agencies, online hotel booking agencies linked to TripAdvisor, such
as www.booking.com, charge a commission, though this is not apparent to
the TripAdvisor users directed to these sites, resulting not in
disintermediation but in (surreptitious) agency fees with the return of the
middle man on a grand scale. The online booking agency Airbnb (like
Uber, the “sharing economy”) charges guests 3 per cent of the apartment
rental with hosts paying 10 per cent, generating enormous revenues and
attracting substantial amounts of venture capital. Once again user-
generated reviews and ratings are key to the success of the company.
Disintermediation, however, remains an illusion.
The relationship between TripAdvisor and Google is an intricate one,
as the consumer-review website depends on search engine results for
visibility, while the search engine makes use of consumer reviews for
businesses on Google Maps, so that smartphone users on the city streets
can not only identify the location of a particular business, but also consult
the reviews and check the ranking. However, “TripAdvisor has
complained that Google has appropriated its content for Google Places
without due credit”7 and Eric Schmidt, Google Executive Chairman,
testifying before the Senate Committee on the Judiciary, Subcommittee on
Antitrust, Competition Policy, and Consumer Rights, admitted that until
2011 Google used “snippets of reviews from sites like Yelp, TripAdvisor,
and CitySearch”8 though they now rely on GooglePlus users. Google is
germane to this discussion, though a comparison between Yelp and
TripAdvisor appears to be more relevant for present purposes:

Like Yelp, [TripAdvisor] has grown through user-generated reviews (of

hotels and attractions), keeps visitors engaged through social networking
features, and uses ruthless search engine optimization tactics to grow its

6
http://www.businessinsider.com/how-tripadvisors-business-works-2011-12
accessed 31 July 2014.
7
http://www.businessinsider.com/how-tripadvisors-business-works-2011-12
accessed 31 July 2014.
8
http://www.googlespleen.com/news/senat_schmidt.pdf, Eric Schmidt, Google
Inc. 21 September 2011.
234 Chapter Eleven

audience. Also like Yelp, the company has been subject to a number of
controversies and lawsuits regarding its reviewing process and practices.9

Aware that the quality of the consumer reviews is essential for the
credibility of the website, TripAdvisor attempts to eliminate fraudulent
reviews. One precaution is a scam detection algorithm to identify multiple
reviews originating from the same IP address, but this can easily be
circumvented by determined and resourceful fake reviewers logging on
from IP addresses in different locations. The Yelp filter tends to err on the
side of caution, sometimes deleting legitimate content along with suspect
reviews:

Yelp, the granddaddy of review sites, has a reputation for an especially

aggressive filter. Many business owners and reviewers complain that
perfectly legitimate reviews sometimes get flagged by Yelp’s algorithms
and stuck in the site’s review filter section. “Yelp has made a business of
protecting consumers, to the point that some legitimate content is
sacrificed to make sure the shady stuff is suppressed,” said Luther Lowe,
Yelp’s public affairs director. “It’s a high cost we accept to avoid the
infinitely higher cost of having a review website people can’t trust.”10

The criteria on which the Yelp algorithm is based are not in the public
domain, presumably in order to avoid providing clues for fake reviewers.
However, they are likely to include the identification of the IP address to
detect multiple submissions from the same source, the frequency of
submissions, the status of the writer as a first-time or expert reviewer, and
the identification of extremely positive or negative ratings as outliers
compared to existing reviews. Language content is less likely to be taken
into account by the algorithm. Human intervention to examine the content
of the submissions may occur but no fail-safe method for separating
authentic reviews from spurious ones has been developed.
Using these spam detection algorithms (Ott et al. 2011) consumer
review websites automatically delete suspect reviews:

An update to Google’s spam detection algorithms will grow the number of

reviews appearing on some Google+ Local pages. And Google has shared
some advice with reviewers, business owners, and SEO professionals on
how to keep reviews from being deleted. Google warns business owners

9
http://www.businessinsider.com/how-tripadvisors-business-works-2011-12
accessed 31 July 2014.
10
http://business.time.com/2013/07/23/alleged-fake-online-review-spammers-get-
taken-to-court/ accessed 30 August 2014.
 Reputation Management and Consumer Review Websites 235

that “fake glowing testimonies” written by SEO or reputation management

companies will be taken down.11

Another measure to combat fake reviews is the blacklisting of businesses

engaging in fraudulent reviewing:

TripAdvisor Scandal: Are Reviewers Being Reimbursed?

More than two dozen hotels around the world have already been
blacklisted from the site for trying to plant fake reviews or reimburse
reviewers, though that second infraction is not explicitly banned by the
site’s guidelines.12

At times reviewers with a professional affiliation to a travel company

writing under a pseudonym may be unmasked, as in the case of the Accor
hotel chain executive Hook, who posted reviews on TripAdvisor using the
screen name Travare, while his true identity was evident from Facebook
and LinkedIn:

He was identified as Hook by Kwikchex, a company that sells online

reputation management software. Kwikchex says that Travare’s identity
was revealed after the roll out of TripAdvisor’s Facebook app, which
displays a name, photograph and location, taken from each user’s
Facebook account. Travare had incautiously linked his anonymous account
to his Facebook account, where his photo would appear next to reviews as
seen by Facebook friends [...] Kwikchex claims they matched up the face
on the photo with the face on his LinkedIn profile. But how they managed
to go through the names of all the people on LinkedIn to find a matching
photo remains mysterious, to say the least.13

The prevalence of fake reviews is hard to measure or estimate reliably,

giving rise to the following (unanswered) questions in a study by Cornell
computer scientists Ott et al.:

Are a few deceptive reviews posted by many people, or are there many
deceptive reviews [posted] by only a few? That is, do some hotels have
many fake reviews while others are primarily honest? Or is there a little bit
of cheating by most hotels? (Ott et al. 2012: 8)

11
http://searchenginewatch.com/article/2241393/Google-Warns-SEO-Businesses-
to-Avoid-Fake-Reviews accessed 10 May 2014.
12
http://news.travel.aol.com/2011/07/11/tripadvisor-scandal-are-reviewers-being-
reimbursed/ accessed 10 May 2014.
13
http://www.tnooz.com/article/accor-executive-posted-dozens-of-anonymous-
tripadvisor-reviews/#sthash.aNptugUW.dpuf accessed 10 May 2014.
236 Chapter Eleven

The authors offer these suggestions:

We find that by increasing the signal cost of a review community, by

excluding reviews written by first- or second-time reviewers, we can
effectively reduce both the prevalence and the growth rate of deception in
that community. Future work might explore other methods for
manipulating the signal costs associated with posting online reviews, and
the corresponding effects on deception prevalence. For example, some
sites, such as Angie’s List (http://www.angieslist.com/), charge a monthly
access fee in order to browse or post reviews, and future work might study
the effectiveness of such techniques at deterring deception. (Ott et al.
2012: 9)

However, these proposals do not stand up to critical scrutiny. From the

discussion above highlighting the market capitalization of consumer
review websites, it is evident that major economic interests are involved.
As a result, a (disreputable) “reputation management” firm can easily
allocate the resources required to generate a number of first- or second-
time reviews from multiple IP addresses in order to establish a number of
viable accounts, and would evidently not be deterred by the monthly
access fee for Angie’s List, a consumer review website. Angie’s List does
not post the access fee online but reveals it only when potential members
enter their personal details. The site claims to be more reliable than other
websites as they do not accept “anonymous reviews” but use “certified
data collection” (without further specification) to prevent firms from
reporting on themselves. The decision to provide the site with a “gender
identity” in the person of co-founder Angie Hicks who appears in their
media presentations (such as Bloomberg TV) as a friendly, reliable and
well informed next-door neighbour persona also promotes trustworthiness.
It is significant that Ken Levin, a business consultant in Texas who has
investigated the dissemination of fake reviews by a reputation
management firm, Glowing Reviews, pointed out “something curious
about all of the reviews posted by this company [Glowing Reviews]: They
were all purportedly written by women. My guess is that they think
women have inherently better credibility.”14 The gender aspect clearly
seems to be relevant, but the anonymity of reviewers hiding behind a
pseudonym also appears to be a significant factor to consider for websites
seeking to enhance their credibility, and Angie’s List underlines the fact
that their members sign reviews with their own names. The market

14
http://business.time.com/2013/07/23/alleged-fake-online-review-spammers-get-
taken-to-court/ accessed 10 May 2014.
 Reputation Management and Consumer Review Websites 237

capitalization of Angie’s List is currently USD 398 million, less than one-
tenth of Yelp, making it a niche operation compared to the major players.15
One further measure intended to improve the reliability of the content
of consumer review websites is to engage the rest of the “community” in
assessing the quality of the reviews. The frequently cited Harvard study of
Yelp highlights the important role of “certified” or “elite” reviewers who
are particularly influential:

Consumer reviews are written by a non-representative sample of voluntary

reviewers who often have little or no connection to the reader. In order to
find a review useful, a consumer must find it relevant, accurate, and
credible. One way to achieve this is to certify the quality of a reviewer.
Yelp has a reviewer credentialing program, where they formally certify
certain reviewers who have written a lot of reviews that Yelp has deemed
helpful. These reviewers are marked as “elite,” and in addition to knowing
whether a reviewer was elite, readers can filter to only look at reviews by
elite reviewers. If elite certification gives reviewers a reputation for leaving
informative reviews, then reviews by elite members should have a larger
impact. […] elite reviewers have roughly double the impact of other
reviewers. Despite the fact that the econometrician cannot observe the
criteria for certifying a reviewer as elite, this suggests a strong role for
reviewer reputation. (Luca 2011: 20-21)

From this overview of the issues relating to the trustworthiness of

consumer review websites, it is evident that many researchers have sought
to address the problem of fake reviews, and although some preventive
measures are available (mainly algorithms to check whether a reviewer is
posting multiple reviews from the same IP address) there appears to be no
totally reliable acid test. Even critical reading by expert readers does not
appear to be foolproof, and research has shown that “the detection of
opinion spam is well beyond the capabilities of human judges, most of
whom perform roughly at-chance” (Ott et al. 2011: 317). Crucially, it
would in any case be a moving target: any research that provides an
adequate characterization of authentic reviews while identifying the key
features of fake reviews (for example, the fact that it is difficult to encode
spatial reasoning into mendacious narrative, as reported by Vrij et al.
2009, quoted in Ott et al. 2011: 310) could then be used by fake reviewers
as a blueprint for their fraudulent operations. However, the fact that a fake
review is not readily identifiable in an incontrovertible manner does not
reduce the importance of the problem, nor does it mean that law-
enforcement authorities are powerless to address this fraudulent activity.

15
http://www.marketwatch.com/investing/stock/angi accessed 24 September 2014.
238 Chapter Eleven

This is the aspect to which the discussion now turns, as in Section 2 the
role of the Advocate General is reviewed, before examining the Advocate
General’s press release in Section 3 in a genre theory perspective.

The institutional framework and the New York Attorney

General
The action taken by the New York State Attorney General, Eric
Schneiderman, is the main focus of this study and it therefore seemed
appropriate to outline the institutional context within which he operates. In
critical genre theory it is important to locate institutional discourse within
the professional context in which it is instantiated, in order to provide an
adequate account of the goals and instantiations of that discourse. To quote
Bhatia (2002: 6):

analysing genre means investigating instances of conventionalised or

institutionalised textual artefacts in the context of specific institutional and
disciplinary practices, procedures and cultures in order to understand how
members of specific discourse communities construct, interpret and use
these genres to achieve their community goals and why they write them the
way they do.

To me there are four contributors to this view of language use (Bhatia,

1999a):

Purposes: Institutionalised community goals and communicative

purposes
Products: Textual artefacts or genres
Practices: Discursive practices, procedures and processes
Players: Discourse community membership (Bhatia 2002: 6).

In this multiperspective view, the focus is not simply on the

institutional context, or on the textual realization, but also on the
interaction between these dimensions. Each professional community
shares its own discursive conventions and practices, and membership of
that community is imbricated in the choice of language, together with the
degree of authority and influence enjoyed by the members of the
community. For reasons of space only a brief overview of the role and
functions of the Attorney General (and the District Attorney) will be
given, while bearing in mind the highly problematic nature of seeking
possible functional equivalents in other common law systems, such as the
Director of Public Prosecutions (England), or in civil law systems, such as
 Reputation Management and Consumer Review Websites 239

the Procuratore della Repubblica (Italy). The New York State Attorney
General is the chief legal officer elected along with the Governor for a
concurrent term of office (New York State Constitution Art. V § 1). In
genre theory terms it is possible to identify a degree of hybridity in the
discourse inherent in the role since it is both legal and political. This
description of the Attorney General’s functions illustrates this point:

Overview of the Functions of the Office of the Attorney General

As head of the Department of Law, the Attorney General is both the
“People’s Lawyer” and the State’s chief legal officer. As the “People’s
Lawyer,” the Attorney General serves as the guardian of the legal rights of
the citizens of New York, its organizations and its natural resources. In his
role as the State’s chief legal counsel, the Attorney General not only
advises the Executive branch of State government, but also defends actions
and proceedings on behalf of the State.
The Attorney General serves all New Yorkers in numerous matters
affecting their daily lives. The Attorney General’s Office is charged with
the statutory and common law powers to protect consumers and investors,
charitable donors, the public health and environment, civil rights, and the
rights of wage-earners and businesses across the State.
The Attorney General’s authority also includes the activities and
investigations of the State Organized Crime Task Force and Medicaid
Fraud Control Unit. While the Attorney General acts independently of the
Governor, the Governor or a state agency may request the Attorney
General to undertake specific criminal investigations and prosecutions.
The legal functions of the Department of Law are divided primarily into
four major divisions: Appeals and Opinions, State Counsel, Criminal, and
Public Advocacy.16

The description may appear to focus exclusively on the role of the

Attorney General as the chief legal officer since legal terminology
predominates (the Department of Law, the Attorney General, the State
Organized Crime Task Force and Medicaid Fraud Control Unit, Appeals
and Opinions, State Counsel, Criminal, and Public Advocacy), but on
closer reading the encoding of certain political values becomes apparent
(Tab. 11-1).

16
http://www.ag.ny.gov/legal-recruitment/overview-functions-office-attorney-
general accessed 24 September 2014.
240 Chapter Eleven

Linguistic device Instantiation

Resemanticization the Attorney General is recast in
the press release as the “People’s
Lawyer”
Foregrounding “the guardian of the legal rights
of the citizens of New York”
precedes “the State’s chief legal
counsel”
Foregrounding “the rights of wage-earners”
precedes “(the rights of)
businesses”

Table 11-1 Encoding of political values in the overview of the

functions of the Attorney General

Further analysis of this text will not be carried out, but these
instantiations highlight the hybrid nature of the discourse, characterized by
both legal and political elements.
Hybridity is evident also in the textual genre adopted by the Attorney
General in the case concerning fake consumer reviews: a press release
(Section 3). Press releases are associated primarily with business and
political discourse, whereas traditionally the forum for judges and public
prosecutors is the courtroom, with reporters commenting in the press on
the proceedings and the sentence. Significantly, in Bhatia’s overview of
genres, the list relating to the law contains no reference to press releases:

System of genres in Law: cases, judgments, ordinances, contracts,

agreements etc.
System of genres in Business: memos, reports, case studies, letters,
System of genres in public administration: government documents,
political communication, news reports, policy statements, international
treaties, memoranda of understanding, etc.
System of genres in mass media: editorials, news reports, review articles,
advertisements, sports reports, letters to the editor, etc. (Bhatia 2002: 9)

Research into the language of the law has focused on legislation

(Tessuto 2003), opinions (Turnbull 2013), courtroom discourse and the
cross-examination of witnesses (Drew 1992, Bromwich 2013), judgments
(Mazzi 2010) and arbitration (Bhatia, Candlin and Gotti 2003; Garzone
2003) but not on press releases.
Further evidence that the discourse of the New York State Attorney
General contains a degree of hybridity across the legal and the political
domains is to be found in the fact that candidates for the office of Attorney
 Reputation Management and Consumer Review Websites 241

General have to fund their own election campaign. In New York even the
District Attorney (a public prosecutor lower down in the judicial
hierarchy) has to stand for election, and campaign costs are substantial, as
highlighted in the New York Times, June 2, 2014: A1:

Inquiry Implicates Former Brooklyn D.A. in Misuse of Public Funds

A Department of Investigation inquiry has implicated Charles J. Hynes, the
former Brooklyn district attorney, for improperly using money seized from
drug dealers and other criminal defendants to pay a political consultant
more than $200,000 for his work on Mr. Hynes’s unsuccessful re-election
campaign last year.
The report, which has been referred to the state attorney general and
several other agencies, concluded that Mr. Hynes could face felony larceny
charges for the misuse of public funds. […] Judge Kamins has been
relieved of all administrative duties, a state courts spokesman said on
Monday.17

It is not intended in any way to imply that Attorney General

Schneiderman was involved in a case of this kind, but to point out the
substantial costs arising from an election campaign for Attorney General
or District Attorney, as the case may be.
The hybridity across the legal and political domains, cutting across the
executive and judicial powers, is evident in the careers of US public
leaders. An Attorney General is not expected to serve as a member of the
judiciary for life, but the appointment may be used as a springboard for a
political career. The following profiles, apparently written by their own
staff, show that a State Attorney General can also pursue a political career:

Eric T. Schneiderman (born December 31, 1954) is an American attorney

and politician. He serves as the 65th and current New York Attorney
General. He is a member of the Democratic Party. Prior to becoming
Attorney General, Schneiderman served in the New York State Senate.18

Gregory Wayne Abbott, known as Greg Abbott (born November 13,

1957), is an American lawyer and politician. He is the 50th Attorney
General of Texas and the Republican gubernatorial nominee in the general
election scheduled on November 4, 2014. Abbott is only the second
Republican to serve as Attorney General of Texas since Reconstruction.
Abbott was sworn in on December 2, 2002, following fellow
Republican John Cornyn’s election to the U.S. Senate. Prior to assuming

17
http://www.nytimes.com/2014/06/03/nyregion/charles-hynes-brooklyn-district-
attorney-inquiry.html?emc=edit_na_20140602 accessed 20 June 2014.
18
http://en.wikipedia.org/wiki/Eric_Schneiderman accessed 26 September 2014.
242 Chapter Eleven

the office of attorney general, Abbott was a justice on the Texas Supreme
Court, a position to which he was initially appointed in 1995 by then-
Governor George W. Bush.19

Samuel Pearson “Terry” Goddard III (born January 29, 1947) is

an American attorney and politician. He served as the 24th Attorney
General of Arizona from 2003 to 2011 and served as Mayor of
Phoenix from 1984 to 1990. Goddard ran for Governor of Arizona in
the 2010 general election, but lost to Republican incumbent Jan Brewer.
He declined to run for Governor again in 2014, but instead will run
for Secretary of State of Arizona (underlining in the original).20

It is important to highlight this to-ing and fro-ing between an

appointment as Attorney General and political office, taking account that
in other Western democracies the chief legal officer is not usually an
elected official. It seems to be highly specific to the US system, and as a
result the political resonance of the term Attorney General may be elusive
to those who are more familiar with other legal cultures where senior legal
officers are under an obligation to maintain a respectful distance from
party politics.
In the discussion in Section 3 below concerning the action taken by
Attorney General Schneiderman against the fraudulent use of consumer
review websites by reputation management firms posting fake reviews, it
is important to bear in mind the institutional framework. It would appear
that the Attorney General is not simply seeking to enforce the law purely
on jurisprudential considerations, but is also attempting to raise his public
profile as the defender of consumer rights, thus accruing political capital.
There is no intention here to imply that such positioning is improper, but
simply to point out that this is one dimension to be considered in working
towards an adequate characterization of the discourse under examination.
In support of this view that the institutional framework needs to be
examined together with a given text, reference may be made not only to
Bhatia’s multiperspective model of genre, but also to the claim put
forward by Bourdieu in the English edition of Ce que parler veut dire:

It is clear that all the efforts to find, in the specifically linguistic logic of
different forms of argumentation, rhetoric and style, the source of their
symbolic efficacy, are destined to fail as long as they do not establish the
relationship between the properties of discourses, the properties of the

19
http://en.wikipedia.org/wiki/Greg_Abbott accessed 26 September 2014.
20
http://en.wikipedia.org/wiki/Terry_Goddard accessed 26 September 2014.
 Reputation Management and Consumer Review Websites 243

person who pronounces them, and the properties of the institution which
authorizes him to pronounce them. (Bourdieu 1991: 111)

Interdiscursivity in the Attorney General’s press release

In Section 1 an attempt was made to cast light on the issues arising
from fake online consumer reviews, while underlining the importance of
these reviews in the modern economy in which social media companies
play a leading role also in the stock market. Section 2 discussed the
generic hybridity inherent in the discourse of the New York State Attorney
General, who is both a senior legal officer and a public leader seeking
political consensus. Section 3 brings together these two apparently
disparate strands of discourse as the focus now turns to the action taken by
the Attorney General to combat the fraudulent use of online reviews.
Critical genre theory proposes the concept of interdiscursivity that is of
considerable value in this connection, as the Attorney General seeks to
resemanticize the terms used by fake reviewers, transposing them to the
domain of law (Tab. 11-2).

The domain of social media The domain of law

the reputation management industry
creating online profiles on consumer
review websites and paying freelance
writers
creating fake online profiles
changing the IP address of the computer
from which it posted the reviews every
week, making the reviews look like they
came from different users
SEO companies
paying freelance writers from […] the
Philippines, Bangladesh and Eastern
Europe $1 to $10 per review
preparing or disseminating a false or
deceptive review that a reasonable
consumer would believe to be a neutral,
third-party review
the manipulation of consumer-review
websites
violating multiple state laws against
false advertising and engaging in
illegal and deceptive business
practices
the 21st century’s version of false
advertising
large-scale, intentional deceit across
the Internet
so-called search engine optimization
companies
producing fake reviews
a form of false advertising
244 Chapter Eleven

preparing or disseminating reviews of preparing or disseminating false and

clients on consumer-review websites deceptive reviews violating, inter alia,
such as Yelp.com, Google Places, New York Executive Law § 63(12),
Yahoo! Local, Citysearch, Judy’s Book and New York General Business Law
and InsiderPages.com §§ 349 and 350

Table 11-2 Resemanticization: the shift from the domain of the social
media to the domain of the law (Source: Author’s elaboration of extracts
from the Schneiderman Fake Review Press Release)21

There is a stark contrast between the original wording and the

resemanticized version: in the case of “search engine optimization”, each
of the component terms has a positive connotation, with the acronym
“SEO” implying that this is a technical concept accessible only to software
engineers. However, the Attorney General challenges this conceptualization
with the expression “so-called”, thus calling into doubt the legitimacy of
these techniques. Also in the case of “reputation management company”
each of the component terms has a positive connotation, but the Attorney
General resemanticizes the term, making reference instead to
“manipulation”. With regard to the list of consumer-review websites, once
again implying the need for specialist knowledge that is likely to be
accessible only to computer specialists, this is set aside, and reference is
made to the legal provisions violated by the false and deceptive reviews.
In short, what is initially formulated as a legitimate activity in a field
requiring highly specialized technical skills (“geek” skills) is
reconceptualized as an activity violating the laws of New York. It is
important to highlight this critical resemanticization of these so-called
“technical” terms as they occur frequently in the discourse of the websites
aiming to recruit “freelance writers” for these tasks (resemanticized as
“fake reviewers”). In his press release the Attorney General points out that
this recruitment takes place in the light of day, and writers may not be
fully aware of the ethical and legal implications of the tasks they are
required to perform. The following extract from the press release makes
this plain, while pointing out that fake review companies recruiting on
Craigslist and similar sites know how the Yelp filter works:

One SEO company required that freelancers have an established Yelp

account, more than three months old, with more than 15 reviews (at least
half unfiltered), and 10 Yelp “friends,” as an attempt to avoid Yelp’s

21
http://www.scribd.com/doc/170558960/Schneiderman-Fake-Review-Press-
Release accessed 10 May 2014.
 Reputation Management and Consumer Review Websites 245

advanced review filter. Attorney General Schneiderman’s office also

discovered solicitations on sites such as Craigslist.com, Freelancer.com
and oDesk.com to hire people to write fake reviews. For example, one
SEO company posted the following: We need a person that can
post multiple positive reviews on major REVIEW sites. Example: Google
Maps, Yelp, CitySearch.
Must be from different IP addresses… So you must be able to have
multiple IPs. The reviews will be only few sentences long. Need to have
some understanding on how Yelp filters works. Previous experience is a
plus…just apply --) We are a marketing company. (Schneiderman Fake
Review Press Release)

The claim that “We are a marketing company” seeks to establish the status of
the firm as a legitimate business. Again, in the following extract, the use of the
terms “YELP expert”, “positive reviews”, and “legitimate existing yelp
accounts” imply that the entire operation is legitimate and (almost) respectable:

In another example, a spa in New York City was looking for help writing
fake reviews:
I need someone who is a YELP expert to post positive reviews for a spa
that will not be filtered using legitimate existing yelp accounts must have
at least 10 friends on Yelp. Please be a yelp expert!! I will pay$10 per-
review after 3 days they must meet the criteria above. (Schneiderman Fake
Review Press Release)

The Attorney General identifies the companies posting fake reviews. The
reviews were known to be fake because the investigators set up a fake
yogurt shop to unmask the fake reviewers:

Zamdel, Inc., d/b/a eBoxed, a search engine optimization company based

in New York City, which posted more than 1,500 fake reviews of clients
on consumer-review websites such as Yelp.com, Google Places, Yahoo!
Local, Citysearch, Judy’s Book and InsiderPages.com. eBoxed attempted
to defeat consumer-review website filters by changing the IP address of the
computer from which it posted the reviews every week, making their views
look like they came from different users. (Schneiderman Fake Review
Press Release)

In this action against fake reviews, the Attorney General was not acting
alone but relied on Yelp expertise to identify the fake reviewers, and one
of the experts quoted in the press release was the Yelp legal counsel. In the
Yelp corporate discourse, the language of computer programming is not
the dominant voice, but other professional voices are present. In Bhatia’s
words, “One needs to look closely at the multiple discourses, actions and
246 Chapter Eleven

voices that play a significant role in the formation of specific discourse

practices within relevant institutional and organizational frameworks”
(Bhatia 2007: 393) (emphasis added). As Yelp executives are aware that
their credibility depends on the trustworthiness of the reviews, they seek to
combat fake reviews. Their Senior Litigation Counsel yelped as follows:

More than 100 million visitors come to Yelp each month, making it critical
that Yelp protect the integrity of its content,” said Aaron Schur, Yelp’s
Senior Litigation Counsel. “We take many steps to do this, including the
use of automated filtering software, leveraging our vast user community
for tips about suspicious content, undercover sting operations, legal action,
and cooperation with law enforcement. We applaud NY Attorney General
Schneiderman for his willingness to tackle the issue of illegal fake reviews
head on, and for his success in shutting down these operators. We look
forward to continuing to cooperate with the New York Attorney General’s
office and any other interested law enforcement office or regulator to
protect consumers and business owners from efforts to mislead.
(Schneiderman Fake Review Press Release)

Concluding remarks
The present study examined the important role played by consumer
review websites in the online economy, while evaluating possible
responses to fraudulent reviews. The ever increasing scale of e-commerce
in the global economy, including the online booking of services such as
hotels and restaurants, is accompanied by a growing need to source
reliable and objective reviews posted online by bona fide customers rather
than by “freelance writers” who are hired by the providers of services to
disseminate fake reviews. The world of social media is clearly evolving at
an alarming speed with the result that legislators and law enforcement
agencies lag far behind the latest developments and appear to have
difficulty in grasping the scale and implications of the exponential growth
of social media. One of these developments is paid-for reviewing, which
Attorney General Schneiderman resemanticized as the manipulation of
consumer review websites, false accounting, fake reviewing, and false and
deceptive reviews, thus mapping the concepts available in existing
legislation onto the domain of social media in order to combat fraudulent
business practices. The claims by “reputation management companies” to
be operating a legitimate business, analogous to a traditional marketing
operation, were placed under the spotlight and resemanticized by the
Attorney General.
 Reputation Management and Consumer Review Websites 247

The action taken by the New York Attorney General shows that fake
reviews, masquerading as the genuine expression of opinion, can be
deemed to be fraudulent activity and false advertising, resulting in
sanctions pursuant to the laws regulating commerce and advertising. In
addition, with regard to the genre conventions within a given discourse
community, it was argued that in most legal cases a key role is played by
well-established genre types such as legislation, case law, courtroom
discourse, witness statements, expert witness statements, cross-
examination and court rulings. It was claimed that press releases pertain
predominantly to business, public relations and political discourse, not
usually to the legal domain. For Attorney General Schneiderman, issuing a
press release may appear to be anomalous considering that press releases
potentially have the power of moral suasion, but in normal circumstances
not the full force of law. They may be seen as a soft law technique,
although they come closer to hard law here since penalties were levied that
the companies agreed to pay, entering into an Assurance of
Discontinuance. However, the Attorney General is not only the chief legal
officer of New York State but also a public leader with a political identity,
and the handling of the case reflected both the legal powers of the
Attorney General and his political ability. The outcome was as follows:

Nineteen SEO Companies and Small Businesses Entered into

Assurances of Discontinuances
The OAG [Office of the Attorney General] has entered into Assurances of
Discontinuance with 19 companies, with penalties ranging from $2500 to
just under $100,000. The practice of preparing or disseminating a false or
deceptive review that a reasonable consumer would believe to be a neutral,
third-party review is a form of false advertising known as
“astroturfing.” Astroturfing is false and deceptive, and it violates,
inter alia, New York Executive Law §63(12), and New York General
Business Law §§ 349 and 350. The companies that agreed to discontinue
their astroturfing practices and pay a penalty include:

Zamdel, Inc., d/b/a eBoxed; XVIO, Inc.; Laser Cosmetica; US Coachways,

Inc.; Swam Media Group, Inc. and Scores Media Group, LLC; A&E Wig
Fashions, Inc. d/b/a A&E and NYS Surgery Center; A.H. Dental P.C. d/b/a
Platinum Dental; Body Laser Spa Inc.; The Block Group, LLC, d/b/a Laser
Cosmetica and LC MedSpa, LLC; Bread and Butter NY, LLC d/b/a La
Pomme Nightclub and Events Space; Envision MT Corp.; iSEOiSEO;
Medical Message Clinic and HerballYours.com; Metamorphosis Day Spa,
Inc.; Outer Beauty, P.C., Lite Touch Plastic Surgery, P.C., Staten Island
Special Surgery, P.C.,Sans Pareil Surgical, PLLC; Stillwater Media Group.
(Schneiderman Fake Review Press Release)
248 Chapter Eleven

The list shows that about half of the 19 companies were firms featuring
in the fake reviews (US Coachways, Lite Touch Plastic Surgery). The
remaining companies seem to be those generating and disseminating fake
reviews while adopting intentionally opaque names (iSEOiSEO), thus
remaining in the shadows rather than becoming household names with a
clear brand identity: otherwise they would run the risk of consumers
giving them bad reviews. The action by the New York State Attorney
General appears to be both innovative and effective in relation to both
types of illicit activity. It is likely to be followed by analogous actions in
other jurisdictions as law enforcement officers become increasingly aware
of the need to cast light on fraudulent online operations and conscious of
the powers they can deploy to combat them.

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 CHAPTER TWELVE

CLIENT REVIEWS OF LAWYER PERFORMANCE

IN SOCIOLEGAL NETWORKING MEDIA:
AN APPRAISAL ANALYSIS

ANNA FRANCA PLASTINA

Introduction
Lawyers have been traditionally considered as the only legitimate
providers of legal knowledge to their clients, and have held a privileged
position in lawyer-client communication. As a result of this long-standing
lawyer-centred practice, emphasis has been placed on the deep
dissatisfaction of numerous clients with the quality of lawyer-client
communication (e.g. Cunningham 1989). More than two decades ago,
Stier (1992: 306), in fact, highlighted that “client problems are not only –
and perhaps not even primarily – legal”. Nevertheless, this socio-
communicative component of law practice has continued to be neglected
by the conservative lawyer-centred professional until the recent
popularisation of law in the social media. This situation has led lawyers to
join virtual professional communities (e.g. Linked In For Lawyers and
Defero Law.com) to keep abreast of new legal practices. Alongside these
environments, which mostly replicate the real-world specialist community,
lawyers are now challenged by the emerging phenomenon of sociolegal
networking sites, where laypeople can appraise their lawyers. This new
social practice is relentlessly revolutionising traditional lawyer-client
communication in different ways.
First, the act of judging lawyers’ performance through online reviews
and ratings places increased power in the hands of clients, resulting in an
inevitable impact on legal practice and client service. Thus, these
sociolegal sites appear to sustain the long advocated paradigm shift from a
lawyer-centred to a client-centred approach, which strives to “render a just
and fair result, from both the client's and society's perspective” (Bastress
 Client Reviews of Lawyer Performance in Sociolegal Media 251

1985: 100). Second, the development of sociolegal networking sites is a

tangible sign of how the lay experiential context is increasingly valued as a
constitutive part of the social practice of law. In other words, these newly
emerging sites reflect the more general societal changes which are
affecting the actual practice of law for a sustainable development of the
legal profession (Brooks and Madden 2010). Third, legal client reviews
automatically become an integral part of a lawyer’s online profile, creating
a relationship-centred lawyering approach (Brooks and Madden 2010). As
this approach subverts traditional lawyer-centred practices, it may be
troubling for those lawyers who are unconcerned about their clients, and
also feel they are lacking complete control over information. This kind of
approach thus solicits law practices to value “[…] the significance of
extra-legal, contextualized elements of a client’s life” (Brooks and Madden
2012: 333). Finally, dissatisfaction with lawyer-client communication can
lead clients to write reviews which make lawyers lose face as professionals.
This may be determined by the struggles in which lawyers and clients are
engaged as each seeks to have her perspective accepted by the other (Sarat
and Felstiner 1995: 143).
As a result, clients may find that their disputes are positioned in
completely different perspectives by their lawyers, and may be
consequently left with a feeling of unfairness. Their reviews can therefore
be seen as an extension of this conflictual engagement through which
clients first regain their power, and then attempt to affect the way the
global lay community perceives justice and fairness in the legal system.
This ground-level up perspective is also the stance taken in this chapter
which focuses on laypeople’s experiences with lawyers. The underlying
assumption is that

[…] there is much more substance to the law than a codification of morals
and values [as law] is deeply embedded in and reflective of […] the culture
in which it is situated. (Brooks and Madden 2012: 345)

The recently developed practice of writing client reviews on sociolegal

sites is becoming an integral part of the current social practice of law. As
this practice is rooted in the key concept of judgement, clients situate their
reviews within the cultural set of institutionalised norms against which
lawyer performance is considered positively and negatively. The main
focus of this study is on investigating how judgemental discourse about
legal professionals is constructed by their clients in online sociolegal sites.
From a social viewpoint, judgement can be understood as
252 Chapter Twelve

[…] whether [clients] felt respected, whether they experienced the legal
professionals as fair-minded and nonjudgmental prior to the disclosure of
facts, and whether they perceived that they had the opportunity to be heard.
(Brooks and Madden 2009: 38-39)

From a linguistic viewpoint, “judgement deals with attitudes towards

behaviour, which we admire or criticise, praise or condemn” (Martin and
White 2005: 42). In their Appraisal Framework, Martin and White (2005)
propose two types of judgement: social esteem and social sanction. These
are defined by White (2011: 23) as follows:

judgements of social sanction involve an assertion that some set of rules or

regulations, more or less explicitly codified by the culture, are at issue.
Those rules may be legal, moral or religious. Judgements of social esteem
involve evaluations under which the person judged will be lowered or
raised in the esteem of their community, but which do not have legal or
moral implications.

In reviews grounded in judgements of social sanction, clients will thus

praise (positive) or condemn (negative) lawyer performance; in those
based on judgements of social esteem, they will admire (positive) or
criticise (negative) lawyer performance.
In a more analytical perspective, the Appraisal Framework draws upon
the sub-systems proposed by Iedema, Feez and White (1994). The three
sub-systems for social esteem include: “[…] ‘normality’ (how unusual
someone is), ‘capacity’ (how capable they are) and ‘tenacity’ (how
resolute they are) […]”, while the two sub-systems for social sanction
“[…] have to do with ‘veracity’ (how truthful someone is) and ‘propriety’
(how ethical someone is)” (Martin and White 2005: 52). It follows that
legal clients express their “adjudicator voice” (Coffin 2002) through
choices pertaining to these sub-systems, which are frequently inscribed
directly into the reviews (explicit judgement). Moreover, this practice
embeds the concept of cognitive appraisal, or “the process of categorizing
an encounter, and its various facets, with respect to its significance for
well-being” (Lazarus and Folkman 1984: 31). In other words, these
reviews spring from primary appraisal of the lawyer-client encounter:
“am I in trouble or being benefitted, now or in the future, and in what
way?”, and from secondary appraisal, now allowed by sociolegal
networking sites: “what if anything can be done about it?” (Lazarus and
Folkman 1984: 31).
As the act of judging lawyers’ performance through online reviews is
still in its infancy, this chapter makes a contribution to exploring its
 Client Reviews of Lawyer Performance in Sociolegal Media 253

discursive potential in building relationship-centred rapport, which may

ultimately sharpen lawyers’ awareness of advising clients more
effectively.

Materials and Method

Despite the legal profession being traditionally slow in adopting new
technologies, it can no longer disregard the proliferation of sociolegal
networking sites on Web platforms which are gaining increasing
popularity among legal clients. Two current popular sites are avvo.com.
and lawyerratingz.com. The policy adopted by the former is clearly
expressed through its motto “Have no Legal Fear”, which solicits legal
clients to act as judges of their lawyers without fears of retaliation; the
claim made by the latter is one of independence, allowing any layperson to
provide real reviews for lawyers.
110 legal client reviews were randomly collected from these two
sociolegal networking sites to form the corpus (5,504 running words;
M=113 words) used in the present study. A qualitative methodology was
adopted to first carry out appraisal analysis and then content analysis. The
former was framed by Appraisal Theory, following the “Sydney School”
of Systemic Functional Linguistics (e.g. Martin 2000; Martin 2014), and
specifically by the Appraisal Framework (Martin and White 2005) as the
most suitable approach to explaining the way language is used to make
judgements. The latter was guided by the summative content approach to
qualitative analysis (Hsieh and Shannon 2005) which allows content
comparisons between the two examined sites.
Appraisal analysis was conducted, guided by the first research question
addressed in the study: 1. What kind of judgemental discourse shapes legal
client reviews? Content analysis was carried out, guided by the second
research question: 2. Is this practice constrained by the new sociolegal
medium?
Raw data was transcribed and judgemental tokens were annotated
manually. Appraisal analysis was performed at three levels, namely,
linguistic, judgemental and orientational in order to gain a holistic
understanding of the kind of judgemental discourse shaped by legal client
reviews. At the linguistic level, tokens were categorised according to the
four classes of adverbials, attributes, nominals or verbs, following
Iedema, Feez and White (1994). At the judgemental level, tokens were
classified as belonging to the sub-systems of normality, capacity or
tenacity (social esteem), or to veracity or propriety (social sanction), based
on the Appraisal Framework. At the orientational level, tokens were
254 Chapter Twelve

categorised for their positive value: admire (social esteem) or praise

(social sanction), or negative value: criticise (social esteem), or condemn
(social sanction), also based on the same framework.
Content analysis was targeted to identifying possible constraints
exercised by the sociolegal medium on the clients’ way of mediating
judgemental discourse.

Findings and Discussion

Two sets of findings are presented in the following sections. The first
set reports on the results of appraisal analysis at the three levels of
language, judgement and orientation embedded in client reviews; the
second refers to findings related to the factors which were found to
constrain legal clients’ act of mediating judgemental discourse.

The Linguistic Level of Appraisal in Sociolegal Client Reviews

Appraisal analysis yielded 2,116 judgemental tokens, which
represented 38.4% of the raw corpus. All judgemental tokens were
classified according to the four classes of adverbials, attributes, nominals
and verbs as shown in Tab. 12-1.

Adverbials Attributes Nominals Verbs

313 (14.8%) 786 (37.1%) 132 (6.2%) 885 (41.9%)

Table 12-1 Linguistic Classification of Judgemental Tokens in the Corpus

The classification suggests that reviewers’ judgements primarily

targeted lawyers’ actions (41.9%) and their professional attributes
(37.1%). For the purpose of understanding which tokens significantly
shaped the analysed reviews, frequency ranking was performed based on
single token-type ratios, i.e. the relationship between the number of most
frequent words (types) and the total number of words (tokens) for each
specific class as in Tab. 12-1. Frequency ranking was set within the range
of 40% ” type-token ratio • 100%, yielding the top ten items for each
class as shown in Tab. 12-2.
In general, findings show that there is a mix of positive and negative
judgements. This not only suggests the authenticity of the “adjudicator
voices”, but also provides a first insight into the kind of judgemental
discourse shaped by legal client reviewers.
 Client Reviews of Lawyer Performance in Sociolegal Media 255

Adverbials Attributes Nominals Verbs

1. accurately 1. professional 1. a liar 1. explained
(81.2%) (86.3%) (56.4%) (92.6%)
2. promptly 2. unqualified 2. a thief 2. lied
(76.3%) (83.8%) (55.7%) (90.2%)
3. thoroughly 3. personable 3. a cheat 3. answered
(75.2%) (64.6%) (53.6%) (89.3%)
4. deceitfully 4. knowledgeable 4. an expert 4. cared
(69.3%) (62.2%) (52.4%) (84.7%)
5. expensively 5. pricey 5. a master 5. overcharged
(68.2%) (61.7%) (50.8%) (75.3%)
6. amazingly 6. caring 6. a misleader 6. helped
(55.3%) (60.6%) (48.9%) (69.2%)
7. skilfully 7. arrogant 7. a deceiver 7. achieved
(54.7%) (58.2%) (46.4%) (67.6%)
8. diligently 8. moral 8. a trap 8. hid
(45.1%) (56.4%) (42.6%) (64.2%)
9. truly 9. careless 9. a thinker 9. refused
(43.6%) (55.8%) (41.4%) (61.7%)
10. grossly 10. aggressive 10. an intellectual 10. didn’t know
(41.4%) (40.6%) (40.4%) (59.8%)

Table 12-2 Frequency Ranking of the Judgemental Tokens per Linguistic

Class

Overall, findings indicate that judgemental discourse focused primarily

on three main actions performed by lawyers: explaining (92.6%), lying
(90.2%) and answering (89.3%), and on two main attributes: professional
(86.3%) and unqualified (83.8%). These results indicate a relatively
balanced distribution between positive and negative reviews, and also
confirm their authenticity.

The Judgemental Level: Social Esteem and Orientation

Twenty-five of the top 40 ranked tokens (see Tab. 12-2) were found to
belong to the judgemental type of social esteem (62.6%). Although the
tokens covered all three sub-systems, they presented an unequal
distribution: normality (22.6%), capacity (25%) and tenacity (15%).
Normality was mainly expressed through the class of verbs with an almost
equal orientation between positive (+admire) and negative (-criticise)
values. Capacity was conveyed through all four linguistic classes with a
predominant positive value (+admire). On the other hand, tenacity was the
least frequent sub-system sourced to convey a significant positive
256 Chapter Twelve

orientation (+admire) through the linguistic class of adverbials as shown

in Tab. 12-3.

Normality Orientation
explained + admire
lied - criticise
answered + admire
cared + admire
overcharged - criticise
helped + admire
achieved + admire
hid - criticise
refused - criticise
Capacity Orientation
professional + admire
unqualified - criticise
personable + admire
knowledgeable + admire
didn’t know - criticise
skillfully + admire
an expert + admire
a master + admire
a thinker + admire
an intellectual + admire
Tenacity Orientation
accurately + admire
promptly + admire
thoroughly + admire
amazingly + admire
diligently + admire
grossly - criticise

Table 12-3 Linguistic Tokens of Social Esteem per Sub-systems and

Orientation

The Judgemental Level: Social Sanction and Orientation

The remaining fifteen tokens (37.4%) were found to belong to the
judgement type of social sanction. 20% of these went under the sub-
system of veracity and were mainly nominals which reflected a negative
orientation (-condemn); the other 17.4% were categorized under the sub-
system of propriety, mainly as attributes reflecting a mixed orientation
between positive (+praise) and negative (-condemn) values. Tab. 12-4
 Client Reviews of Lawyer Performance in Sociolegal Media 257

summarises appraisal findings for the single sub-systems of social sanction

and their orientational values.

Veracity Orientation
deceitfully - condemn
truly + praise
a liar - condemn
a thief - condemn
a cheat - condemn
a misleader - condemn
a deceiver - condemn
a trap - condemn
Proprietary Orientation
pricey - condemn
expensively - condemn
caring + praise
arrogant - condemn
moral - condemn
careless - condemn
aggressive - condemn

Table 12-4 Linguistic Tokens of Social Sanction per Sub-systems and

Orientation

On the whole, findings were found to belong to both types of judgements

and to all their related sub-systems. Nevertheless, closer analysis revealed a
significant pattern of judgemental discourse across the corpus of
sociolegal reviews as shown in Tab. 12-5.

Judgement Sub-systems Orientation Linguistic

Types Classes
Social Esteem Capacity (25%) + admire attributes
Normality (22.5%) +/- admire/criticise verbs

Social Sanction Veracity (20%) - condemn nominals

Table 12-5 General Pattern of Judgemental Discourse in the Corpus

Reviews

In sum, judgemental discourse was shaped by legal client reviewers

through the use of both judgement types, although social esteem
outweighed social sanction. Together, the sub-systems of capacity and
258 Chapter Twelve

normality helped build 47.5% of the judgemental discourse identified in

the corpus reviews, whereas the sub-system of veracity contributed 20%.
These findings suggest that legal clients were more concerned with
lowering or raising lawyers’ esteem within the global community rather
than with any legal issues which may have been at stake. In other words,
clients appeared to be more actively involved in constructing or
deconstructing client-lawyer relationships as judgemental discourse
revolved mainly around the two factors of competence and behaviour. In
detail, lawyer competence was the first main factor taken into account.
Capacity was predominantly judged through a positive orientation
(+admire), expressed mostly through the linguistic class of attributes.
Lawyer behaviour was the second factor considered. In this case,
normality was reviewed through a mix of positive (+admire) and negative
(-criticise) values, and mainly expressed through the linguistic class of
verbs, which clearly marked the actions performed by lawyers.
Despite clients being less engaged in judgements of social sanctions,
the third significant factor which emerged from client reviews was that of
truthfulness, which was consistent with the general stance of constructing
or deconstructing client-lawyer relationships. Judgemental discourse of
veracity was principally shaped by a negative value (-condemn), and
governed by the major use of the linguistic class of nominals. Thus, clients
stressed their lawyers’ state of untruthfulness, suggesting their common
practice of breaching rules of honesty.

Judgemental Discourse: Constraints of the Sociolegal Medium

Findings yielded from content analysis showed that two main factors
affected clients’ judgemental discourse due to the constraints exerted by
the sociolegal medium, namely, the rating criteria and their influence on
reviewers’ judgemental discourse, and the editorial policies.
Rating criteria were pre-established by both sociolegal sites, although
priority was given to different criteria. In the case of avvo.com, clients
were constrained by the criteria of trustworthiness, responsiveness and
knowledgeability, so that appraisal could only be mediated through ratings
based on the sub-systems of veracity, propriety and capacity. On the other
hand, lawyerratingz.com required clients to rate lawyers for their
knowledgeability, communication and tenacity. Client ratings were
therefore restricted to the sub-systems of capacity, normality and tenacity.
The only common rating criterion found was thus knowledgeability
(capacity), which appeared to privilege ratings on lawyers’ expertise.
After rating their lawyers, clients were then able to write their reviews.
 Client Reviews of Lawyer Performance in Sociolegal Media 259

Content analysis showed that reviewers mediated judgemental discourse

by mainly keeping within the boundaries of the established rating criteria
as in examples (1) and (2), excerpted from avvo.com:

(1)
Amazingly helpful and competent. Coached me through difficult mediation
with incredibly positive results. Very thorough, responsive and clear so I
understood everything she was suggesting. I have recommended Paula to
several friends since my divorce.

(2)
Completely bogus. Just does not care, only interested in hourly fees. All the
work is done by his assistants. He is incompetent and had been reported to
and reprimanded by the attorney grievance committee! !!!! Look it up for
yourself!!

Despite their different orientation, both examples (1) and (2) show how
judgemental discourse was shaped by:

x trustworthiness (veracity): helpful; bogus, respectively intensified

by the adverbials amazingly and completely. Both helpful and
bogus embed the semantic concept of (dis)trust;
x responsiveness (propriety): thorough, responsive and clear
intensified by the adjective very; does not care, only interested in
hourly fees. These judgemental tokens connote different degrees of
how ethical the lawyers were;
x knowledgeability (capacity): competent, positive results, intensified
by the adverbial incredibly; incompetent, supported by evidence of
facts in the reviewer’s argumentation (had been reported to and
reprimanded by the attorney grievance committee! !!!! Look it up
for yourself!!).

A similar trend was found in reviews posted to lawyerratingz.com,

where knowledgeability, communication and tenacity appear to guide
judgemental discourse as shown in examples (3) and (4):

(3)
He worked on my child support case and was extremely knowledgeable
and compassionate. He was thorough and looked after my interests and
was able to fix my problem.

(4)
She is unprepared and inexperienced, does not know what she is doing. I
260 Chapter Twelve

lost my case. All she cares about is the money; she does not work for you,
never calls you; you can't get a hold of her. Go find someone else; do not
pick such a horrible lawyer.

Again, the two examples clearly show a different orientation, but both
embed:

x knowledgeability (capacity): knowledgeable, able to fix my

problem; unprepared, inexperienced, does not know;
x communication (normality): compassionate, never calls you; can't
get a hold of her;
x tenacity (tenacity): worked, thorough, looked after my interests;
does not work for you.

As for the factor of editorial policies, these were clearly stated in the
case of avvo.com as in examples (5) and (6):

(5)
We will only accept reviews that clearly indicate they were written by an
actual client.

(6)
Reviews that contain unsupported accusations will not be approved.

Thus, acceptance and approval of reviews was based on the conditions

of having experienced a real lawyer-client encounter, as well as on using
argumentative language to support negative judgements, as can be seen in
example (2).
On the other hand, no explicit constraints were identified in the
editorial policies of lawyerratingz.com. While this condition allowed
clients major freedom in shaping their judgemental discourse, it was found
to pose unprecedented constraints on lawyers, who have decided to take
action in posting complaints to the site. Examples (7) and (8) offer a clear
idea of the impact of this social practice on two different lawyers:

(7)
It is impossible to sort out which reviewers are posting legitimate gripes
from those who are merely using the site to vent their hatred, anger,
disappointment.

(8)
She became obsessed with attempting to damage my good name and
reputation and set about defaming me on Lawyerratingz.com.
 Client Reviews of Lawyer Performance in Sociolegal Media 261

Example (7) suggests that there is no clear-cut boundary between

legitimate clients reviewing their experiences and those who merely want
to write unsupported accusations, as there are no set regulations in
lawyerratingz.com. This implies that effective legal client-centredness
needs to be governed by the editors of the sites as in examples (5) and (6).
Example (8) indicates the lawyer’s concern of losing face within the
global community (damage my good name and reputation; defaming me).
Further constraint was placed on lawyers by both sociolegal sites in
promoting the policy of empowering legal clients as shown in example
(9):

(9)
You be the Judge (avvo.com)
Let the public decide (lawyerratingz.com)

Avvo.com empowers its reviewers to act as judges (from Latin

iudicare, to judge, to examine officially; form an opinion upon; pronounce
judgment), investing them with the full authority of administering (social)
justice. It thus acknowledges clients’ equal social status of power with
their counterparts. Lawyerratingz.com positions its clients on the same
plane by allowing them to decide. The term itself conveys the legal
meaning of any judge’s action of reaching a determination (decision) by
choosing what is legally right and wrong according to his/her viewpoint.
The breadth of the social impact of the sociolegal medium can be
furtherunderstood to place major pressure on the specialist community as
indicated in example (10):

(10)
Once your review has been approved by Avvo, it will become part of your
lawyer's profile.

After several communications with LawyerRatingz.com, they suggested

that I improve my reputation by having satisfied clients post positive
reviews.

Thus, legal clients not only bear the responsibility for shaping their
lawyer’s profile, which is visible to the global audience, but they can also
actively contribute to determining lawyers’ professional reputations. The
social impact of this power is thus inversely proportional to the trouble it
places on lawyers. As highlighted by attorney Buchdahl (2014): “whereas
a corporate law firm might be focused on Chambers USA or the U.S.
News list, a consumer-driven law firm might be more concerned with
262 Chapter Twelve

Avvo visibility. And the overlap into “reviews” extends to nonlaw sites
where lawyer performance reviews can be posted on Yelp or Google”.
Substantially, the difference between corporate law firms and
consumer-driven ones comes full circle with the long advocated paradigm
shift from a lawyer-centred to a client-centred approach. Even corporate
lawyers, whose main focus is on delivering legal services to their clients,
are not immune from the relentless development of sociolegal networking
sites, and from the power exerted by their clients through this medium.
In sum, content analysis showed how legal clients’ practice of writing
reviews of lawyer performance was constrained by pre-established rating
criteria, by the influence they have on clients’ mediation of judgemental
discourse, and also by editorial policies. Nevertheless, the unprecedented
power clients gain through this new sociolegal medium in appraising their
lawyer-client encounters by far outweighs these constraints.
On their side, lawyers may hate sociolegal networking sites to the point
of filing lawsuits against these companies. Lawyers still appear to be more
concerned with the quality of the services they deliver, rather than with
their lawyer-client relationships as in example (11):

(11)
lawyerratingz.com has become a place where persons who have a
proverbial ‘axe’ to grind or other problems not directly related to the
quality of the legal services that they received, can ‘vent their spleen’
damaging the reputation of hard working honest legal professionals with
impunity.

The lawyer in this example appears to be annoyed by the lack of

control over the information that clients are allowed to spread through the
sociolegal medium. Besides focusing on their services, lawyers should
indeed strongly consider that

the basic guiding principle underlying client-centered representation is to

value and enhance the client’s autonomy, both within the lawyer-client
relationship and within society. (Kruse 2011: 587)

Concluding Remarks
Social networking is permeating today’s global society at a record pace
to the point of becoming a well-established subculture. Influenced by this
revolutionary phenomenon, sociolegal networking sites continue to
develop, a testimony of the importance of the social aspect of the practice
of law and of the lay experience as constitutive parts.
 Client Reviews of Lawyer Performance in Sociolegal Media 263

This study has attempted to highlight the force exerted by this medium
in compelling the practice of law to move from a lawyer-centred approach,
concerned basically with delivering legal services, towards a client-centred
approach, which values relationship-centred lawyering in concrete terms.
The appraisal analysis carried out in the study confirms, in fact, that legal
clients tend to shape the judgemental discourse they embed in their
reviews of lawyer performance more through social esteem than social
sanction (see Tab. 12-5). This result suggests that the judgement type of
social esteem is loaded with the interpersonal function of language (cf.
Halliday 1985; Lemke 1992, 1998; Martin 2000). In turn, this underlines
that clients feel a strong need to set up and maintain social relations with
their lawyers, built on their professional competence (capability) and
behaviour (normality). As pointed out by Kruse (2011: 585), it is a matter
of “get[ting] lawyers to bring the client’s other interests and concerns back
into the picture so that the legal representation can be directed toward
objectives that put the pursuit of legal interests into the context of the
client's other values, relationships, and concerns”.
Furthermore, although the judgement type of social sanction was found
to be less significantly used in the corpus of reviews, it helped shed light
on the fact that law practice always takes place within the culture of
institutionalised norms in which it is situated. Thus, judgements of social
sanction were loaded with the ideational function of language (Halliday
1985), which was used by clients to conceptualise the social world
surrounding the practice of law, mainly in terms of lawyers’
trustworthiness (veracity). More specifically, the ideational function of
language was employed to convey experiential meaning of the lawyer-
client encounter within the cultural context of universally acknowledged
professional values.
Content analysis further confirmed the importance of relationship-
centred lawyering through findings which highlighted that the new
sociolegal medium empowered legal clients more than constraining their
practice of writing reviews. On the other hand, this was found to have a
profound social impact, also due to the fact that “the legal profession has
historically taken a cautious approach to technology that establishes new
communication channels” (Jacobowitz and Singer 2014: 447-448).
Lawyers thus need to come to terms with the more general societal
changes which are affecting the actual practice of law also thanks to new
technological communication modalities.
Overall, the study represents a snapshot of the language of judgement
currently used by legal clients, which reflects the surging demand of new
competences for a sustainable development of the legal profession. These
264 Chapter Twelve

include taking on board not only traditional legal thinking and related
analytical skills, but also new psychological skills which lawyers need in
order to cope with the social, cultural and psychological aspects of their
encounters with legal clients. As mentioned in a previous research study,
“the potential of multimedia technologies, however, has yet to be fully
explored in supporting the non-specialist community […]” (Plastina 2014:
47). Nevertheless, sociolegal networking sites can be easily seen as a
‘moving target’ (Hogan and Quan-Haase 2010), which currently provides
cogent evidence of the social impact this medium has on traditional law
practices. The present study has shown how the new practice of writing
reviews of lawyer performance has already stretched the boundaries of the
specialist community to empower clients’ discursive agency within a
global social context. Nonetheless, the major limitation of the
investigation is due to the fact that this phenomenon is still in its infancy.
Once its expansion becomes more systematic, further research can be
conducted to gain deeper insights into the emerging role of legal clients as
the primary agents of the social practice of law.

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 CHAPTER THIRTEEN

HOW THE LAW IS RESPONDING

TO A CHANGING SOCIETY:
A COMPARATIVE LINGUISTIC ANALYSIS
OF TEXTS ON CYBERCRIME

JUDITH TURNBULL

Introduction
Modern society is defined by the Internet: over a quarter of the world’s
population is wired into the net and the number is growing every day. The
Internet is a source of information, communication, entertainment,
education. Unfortunately however, though not surprisingly as many
technological advances have a downside, the evolution of the Internet has
been paralleled by an evolution in crime. Cybercrime is becoming, or to be
more precise, has become a real challenge for society. As more and more
of our lives is transferred online - our work, business, transactions, even
our social lives, the risk of and opportunities for cybercrime multiply. This
chapter will firstly investigate how cybercrime is defined, described and,
above all, perceived in society through a linguistic analysis of articles and
editorials in the press and secondly, it will examine the present situation of
legislation dealing with it.
The study focuses on cybercrime in the UK, which is considered one
of the more ‘appetizing’ targets for cybercriminals. As one observer
pointed out:

The reason we're such a persistent target of attack is because we have so

much worth stealing – financial assets, intellectual property and the type of
vibrant dynamic business that generates both. We shouldn’t worry if
criminals wish to steal from us, but we must work to limit their chances of
success. (New Statesman: August 5, 2013)
268 Chapter Thirteen

It has been estimated that cybercrime costs the UK £27 billion each
year. However, it is difficult to assess the reliability of statistics about
cybercrime (Anderson et al 2013). Many businesses do not report it
because they are not obliged to do so and for fear of damaging their
reputation. Besides, many of the published statistics are actually calculated
by organizations that have a vested interest in selling security solutions.
Indeed, the £27 billion figure is taken from a report commissioned by the
government, but made by Detica, a cyber security company.
Certainly figures of this size are sufficient to unnerve people and the
way the press depicts cybercrime will either help to allay or fuel these
worries. At the present time the legislation in the UK against cybercrime
dates back more than twenty years, to the Computer Misuse Act 1990,
which was later strengthened by amendments introduced in the Police and
Justice Act 2006. In spite of the fact that laws are framed in general terms
in order to include present day and potential offences in the future,
legislation in this field almost inevitably lags behind, due to the speed at
which technology advances. The most recent piece of legislation that aims
to accommodate the new developments in cybercrime is the EU directive
2013/40/EU on attacks against information systems, which Member States
should implement by September 2015.

Cybercrime: definition and public awareness

A definition of cybercrime usually opens with the premise that it can
be subdivided into two broad categories: cyber-enabled crime and cyber-
dependent crime (Anderson et al. 2013, Detica 2011). Cyber-enabled
means traditional crimes, such as fraud and theft, which are now being
conducted online, whereas cyber-dependent refers to new crimes that have
evolved with technology, such as malware, phishing and botnets.
Cybercrimes can be against persons, assets, businesses or states and the
term encompasses a broad range of activities, including those mentioned
above, fraud and theft, but also identity theft, viruses, various types of
scams, as well as cyber stalking, online bullying, child pornography and
child grooming that involve many broader social issues. It can, therefore,
affect all areas of life, from national security and the business world to the
personal sphere. Due to its decentralised structure, users of the Internet can
enjoy high levels of anonymity, with little risk of being traced.
Consequently, the Internet is a magnet for all sorts of common criminals.
After all, cybercrime is just a ‘normal’ crime with an online aspect.
But, unless somebody has been personally involved as a victim or
potential victim, what does the general public actually know about
 How the Law is Responding to a Changing Society 269

cybercrime, its extent and how to defend him- or herself? In an EU survey

on cyber-security (Eurobarometer 2013), which may be seen as the other
side of the coin to cybercrime, respondents were asked to consider four
statements:

Ǧ You avoid disclosing personal information online

Ǧ You believe the risk of becoming a victim of cybercrime has increased in
the last year
Ǧ You are concerned that your online personal information is not kept secure
by websites
Ǧ You are concerned that your online personal information is not kept secure
by public authorities

They had to answer whether they agreed, disagreed or did not know.
The answers show that, on average, approximately 70% of the
interviewees are aware of and are concerned about cybercrime and
security in the European Union.

Materials and theoretical background

The corpus for the first part of the study on the perception of
cybercrime is made up of articles from three daily newspapers, Daily Mail,
Daily Telegraph, The Guardian, and three weekly magazines, Economist,
New Statesman and The Spectator, which appeared between 2010 and
2014. Both the newspapers and the weeklies follow different editorial lines
and political alignments, which should offer a broad view of cybercrime.
A basically qualitative approach has been followed, as the study is
concerned with the perception of cybercrime among the general public and
has focused, therefore, on the expressions of evaluation in the texts.
Evaluation is the “expression of the speaker’s attitude or stance towards
viewpoints on, or feelings about the entities or propositions he or she is
talking about” (Hunston and Thompson 2000:5). It positions the writer in
relation to the discourse community’s value system and, in turn, reflects
the assumptions, opinions and beliefs of society as a whole. This study is
concerned with the values ascribed to the entities and propositions being
evaluated, which will then inform public opinion on cybercrime. As
Hunston and Thompson (2000: 13) stated, “Evaluation consists of
anything which is compared to or contrasts with the norm”, so that it is
“comparative, subjective and value-laden”.
Obviously as we are dealing with crime, there is an implicit negative
evaluation of what is being discussed in the texts. But, in addition to the
good/bad dichotomy, Hunston and Thompson also identified other
270 Chapter Thirteen

parameters of evaluation, namely, certainty, expectedness and importance

(2000: 25), which will also be considered in the analysis. Evaluation may
be expressed through lexical and grammatical items or at text level, and
the devices include comparators, narrative, vague language, intensifiers,
modals and adverbs.
The second part of the study focuses on the legislation about
cybercrime and, more precisely, on the EU Directive 2013/40/EU on
attacks against information systems. A Directive does not automatically
become law within Member States. It is

binding as to the result to be achieved, upon each Member State to which it

is addressed, but shall leave to the national authorities the choice of form
and methods. (Treaty on the Functioning of the European Union
26.10.2012, Article 288)

It is left, therefore, to the discretion of the Member States to decide how to

‘transpose’ the Directive in the most effective and appropriate manner in
accordance with its legal culture and traditions. At the time of writing, the
Computer Misuse Act of 1990 is being updated by a Serious Crime Bill
presently going through parliament to comply with this EU Directive.
The Directive has been chosen for analysis firstly, because it is the
latest legislative act in force, but also because an essential part of a
Directive is the section of Recitals, which “contain the statement of
reasons for its adoption” (Joint Practical Guide 2013: 19). A Directive is
composed of five parts in all, title, citations, recitals, the enacting terms
and annexes where necessary. The citations set out the legal bases of the
act and the main steps in the procedure leading to its adoption. The recitals
explain the directive’s purpose and underlying philosophy, thus
contextualising the legislation and therefore should give interesting
insights to how, why and in what way the law is responding to the
cybercrime challenge. The last part presents the enacting terms, where the
provisions of the act are set out.
The study will focus on the recitals and the articles of the Directive,
which will also give the opportunity to reflect on the language and style of
this type of legal text. Most studies on the legal language used in the EU
context concentrate on translation and terminology (Yankova 2008,
Šarþeviþ 2010, Cheng, Sin and Wagner 2014). But here the interest lies in
the style of English in the Directive. EU documents are produced in a
supranational multicultural discourse community and may be considered
hybrid texts, insofar as they are the “outcome of negotiations between
cultures and the norms and conventions involved” (Trosborg 1997: 146).
As such, they present specific textual features, such as vocabulary, syntax,
 How the Law is Responding to a Changing Society 271

style (Trebits 2008, 2009, Jablonkai 2010, Trosborg 1997) which can be at
variance with usage by native speakers. “Linguistic expressions are
levelled at a common (low) denominator” (Trosborg 1997: 151), so that
texts are characterised by reduced vocabulary, limited grammatical forms
(Pym 1993), complex sentence structure, overuse of abstract nouns,
complex noun phrases and nominalization (Trosborg 1997.) Tosi gives a
more generous, and at times conflicting, evaluation, though he reaches the
same conclusion that EU English is strange and alienating.

The official voice of Europe has few unnecessary technicisms, few

archaisms or bold foreign borrowings in any language. Nor does it have the
same pretentious juridical style that we find in texts marked by the tone
and style of traditional bureaucracies. What we do find, instead, is a textual
uniformity, whatever the topic or readership, based on approximations that
are immediately recognizable as impairing good communication. The
words are clear enough, the syntax not structurally complex, and apart
from a few new foreign borrowings, there are no obvious discrepancies
with ordinary language. Yet lexical vagueness and weak logical
connections spread a sense of mechanistic virtuality that makes the voice
of Europe sound awkward, abstract and completely distant from any
language spoken in everyday life. (Tosi 2005: 385)

Analysis
Perception of cybercrime
As mentioned above, the articles were taken from three dailies and
three weeklies of different political standpoints. Although there were many
different types of evaluative elements to be found in the articles, two
contributed in an outstanding way to the impression conveyed of
cybercrime. The first is analogy and the second narrative. The examples
that follow have been chosen to illustrate the evaluative features being
described, rather than to represent the positions of the different
publications.

Comparisons
Analogy, whether similes, metaphor or comparisons, is a way of
presenting a source item in terms of another, transferring meaning from
one subject to another, in order to facilitate understanding or for rhetorical
effect. The choice of the source domain reflects the stance of the writer
and the evaluation he wants to give to the target domain. There was, in
272 Chapter Thirteen

fact, a wide variety and scope in the source domains, which have been
grouped into broad categories to show how cybercrime is supposedly
impending on Britain today.
The relevance and importance of the cybercrime threat is frequently
expressed in terms of figures and percentages either in a general context to
show the phenomenal growth of cyber-attacks (1) or, in comparison with
other states, at an individual or personal level with reference to UK
residents (2).

(1) Cyber-attacks are happening more often and are becoming more
precisely targeted. […] Symantec observed virtually no targeted attacks
before Stuxnet, a worm that attacked industrial-control systems, appeared
in 2010. Last December it spotted an average of 154 a day. (Economist,
June 30,2012)

(2) According to research commissioned for UK Fraud Prevention

Month, which starts today, almost a quarter of UK residents have been
victims of identity fraud compared to a 17pc average across Europe. Even
in Russia, only 20pc of the population have been touched by identity theft.
(Daily Telegraph, October 1, 2012)

The following example gives a very clear idea of the scale of the
problem by emphasising not only the size, but also the power and money-
making ability of cybercrime.

(3) When your credit card details are stolen, it’s usually by well-trained
groups of about a dozen people. ‘It pretty much is an industry,’ says Orla
Cox. (Daily Mail, January 12, 2013)

The evaluation of the cybercriminals’ earnings is not just directly

expressed through a comparison, but also by the use of non-core
vocabulary ‘gobsmacked’ and intensifiers ‘hoovered up’ and ‘week in,
week out’ in the following example.

(4) … FIS had lost $13m (£8.3m) and the scammers […] had used just 22
rigged pre-paid credit cards to syphon off this vast amount of money.
Traditional bank robbers must be absolutely gobsmacked when they hear
sums like this being hoovered up by cyber criminals week in, week out.
(The Guardian, September 21, 2011)

Cybercrime is also shown to have a number of advantages over

traditional crime, because of its simplicity and limited risks, as well as the
potential size of the haul. However, the comparisons are made with two
 How the Law is Responding to a Changing Society 273

very serious and socially condemned crimes, drug trafficking and bank
robbery, to stigmatise cybercrime.

(5) “This is all still in the early stages,” says Garrick. “My biggest fear is
that this will move into being an essential part of every organised crime
set-up. It’s safe, compared with drug dealing. It’s massively simple,
compared with duty fraud or anything along those lines… (Daily
Telegraph, December 9, 2013)

(6) “You can steal more on the internet than you can by robbing a bank.”
(New Statesman, July 30, 2013)

(7) A report by the all-party home affairs select committee, published in

July, expressed surprise that hackers convicted of costing PayPal, the
internet payment site, millions of pounds received shorter jail terms than if
they had physically robbed a bank. (Daily Telegraph, September 25, 2013)

The articles point out that the advances in cybercrime are not just a
question of quantity, but also quality. Worryingly, a comparison of ability
between criminals and the law enforcers seems to fall heavily in favour of
the former; they now have enormous power and know-how, so much so
they have become well-structured organizations.

(8) He [police chief] warned: "My investigators tell me the expertise

available to law enforcement is thin, compared to the skills they suspect
are at the disposal of cyber criminals." (Daily Telegraph, October 2, 2010)

(9) One of the co-founders of CarderPlanet, the Ukrainian hacker known

as Script, described the pioneers of digital thieving as "lone wolves". […]
But in the past few years […], the lone wolves have started to form packs
with trusted friends and these look more like traditional organised crime
groups with a clear hierarchy and division of labour. (The Guardian,
September 21, 2011)

What all this means to ordinary people in terms of costs and danger is
expressed in the same extravagant way, with repeated comparisons with
the drugs trade or the calamitous BP oil disaster (10). (11) uses the vague
terms “billions” and “roughly” to amplify and emphasise, whereas as (12)
reports what experts in the field say, giving authority to the information.

(10) Target’s catastrophic breach may come to be seen as the digital

equivalent of BP’s disastrous Deepwater Horizon oil spill. The retailer
faces a whopping bill for cleaning up the mess the massive data leak has
caused. (Economist, February 22, 2014)
274 Chapter Thirteen

(11) 'In total, the cost to UK plc of security breaches is of the order of
billions of pounds per annum - it's roughly tripled over the last year,' the
report stated. (Daily Mail, April 23, 2013)

(12) Symantec, a security firm, asserts that cybercrime now costs the
world $388bn annually, of which $114bn is the direct cash cost of online
fraud, and the remainder the indirect costs of dealing with its
consequences. This is bigger than the black market in marijuana, cocaine
and heroin combined. (The Guardian, November 6, 2011)

The risks associated with cybercrime seem to be depicted in a way to

deliberately raise tension, as they are compared to phenomena that are
completely beyond the control of readers, such as terrorism, nuclear
attacks, natural disasters, major accidents and a flu pandemic. They are
expressed as bare statements, once again backed by reports from official
sources, giving an air of authority and certainty. In this way the press plays
on the deep-seated fears of people.

(13)“We are not winning the war on online criminal activity. We are being
too complacent about these e-wars because the victims are hidden in
cyberspace. The threat of a cyber attack to the UK is so serious it is marked
as a higher threat than a nuclear attack,” said committee chair Keith Vaz.
(Daily Telegraph, July 30, 2013)

(14) Attacks on the UK's IT systems were identified in last year's strategic
defence and security review (SDSR) as one of the four most serious threats
to national security, alongside terrorism, natural disasters and major
accidents. (The Guardian, February 17, 2011)

(15) The government upgraded cyber crime to a tier one threat in October,
putting it on the same level as international terrorism or a flu pandemic. It
has set aside £650m to combat the threat. (The Guardian, March 2, 2011)

The actual activities of cybercrime are described in very vivid terms,

with brutal details reminiscent of horror films:

(16) Then there are the ‘Denial of Service’ (DoS) attacks, which use
armies of ‘bots’ — or ‘zombies’ — to flood company websites with fake
data requests. The words conjure up images from Night of the Living Dead
and the reality is the online equivalent of consuming a living person’s
flesh, as hundreds of thousands of ‘zombies’ attack a website until they’ve
taken it offline — which can disable it for days and lose the company a
fortune. (Spectator, June 13, 2007)
 How the Law is Responding to a Changing Society 275

(17) Last month, the world's most complex computer virus yet
discovered, Flame, targeted systems in the Middle East. Twenty times
more powerful than other known cyber warfare programmes, the virus had
spent five years lurking maliciously in the bowels of computer networks
before infecting machines in Iran, Israel, Sudan, Syria, Lebanon, Saudi
Arabia and Egypt. (Spectator, June 30, 2012)

The geographical range of the attacks is also quite frightening, ranging

from Africa, Eastern Europe, China and the US and increases the sense of
vulnerability.

(18) A spokeswoman for O2 Telefonica, a mobile operator, confirmed

that they had tracked the IP addresses of the alleged attackers to computers
in Russia, but other victims said they were attacked from computers in
Africa or elsewhere in Europe. (Economist, March 13, 2013)

Narrative
The other element in the texts that we will very briefly mention is
narrative, which is used to make the information more dynamic and
immediate. What distinguishes narrative from simple reports and
summaries is evaluation (Cortazzi and Jin 2000: 105). The evaluation
makes the information in narrated events “reportable, repeatable and
relevant”. There are many examples of narrative in the newspaper articles,
but just one example will suffice to show how they aim to warn that
anyone unawares can become a victim of identity theft. This is expressed
through affect and in terms of unexpectedness and unpleasantness.

(19) Finding out that I was a victim of identity theft, came as a nasty
shock. But had it not been for CIFAS, the UK's fraud prevention service
which most people have never heard of, my experience could have been so
much worse. (The Guardian September 23, 2013)

The articles in the analysis evoked an impression of cybercrime as

frightening (through its extent and power), mysterious (as an unknown
entity, almost a parallel world), surprising, even shocking. This long list of
examples, which border on the outrageous at times, has been compiled to
show how cybercrime is frequently depicted in the press in a way that
easily arouses fears and worries among the general public. As Facchinetti
(2012: 145) points out, news writing has become increasingly subjective
over the last fifty years and now displays “emotive shades of […]
interpretation”. Wall (2008: 48) goes even further to suggest “news
reporting tends to simultaneously feed and feed off the public’s lust for
276 Chapter Thirteen

shocking information and this endless demand for sensation sustains the
confusion of rhetoric with reality”. A lack of reliable statistical data on the
real extent of cybercrime, hindered further by under-reporting of crimes,
adds to the uncertainty surrounding cybercrime.

Analysis of Legislation: Directive 2013/40/EU

The second part of the analysis will look at how the law has responded
or is responding to this new situation and, in particular, the Recitals and
Articles of the EU Directive 2013/40/EU.
The preamble of this directive on cybercrime has 38 recitals, which
range in length from 24 to 200 words, but have an average length of 96
words, which should provide the opportunity for fairly detailed
explanations of the reasons for the main provisions. The first recital sets
out the purpose, which is to give a clearer definition of cybercrimes and
their penalties, as well as favouring the development of greater
collaboration in the enforcement of the law throughout Member States.

(20) The objectives of this Directive are to approximate the criminal law
of the Member States in the area of attacks against information systems by
establishing minimum rules concerning the definition of criminal offences
and the relevant sanctions and to improve cooperation between competent
authorities, including the police and other specialised law enforcement
services of the Member States, as well as the competent specialised Union
agencies and bodies […].

Recitals 2 to 6 explain the reasons for the directive and focus on many
of the aspects depicted in the press, such as the involvement of organised
crime or terrorist organisations (22), the possibility of attacks at the very
core of the state and its critical infrastructure (24) and the technical
sophistication of cybercriminals (26).
It fully recognises the dangers inherent in the development of
cybercrime and especially its links to organised crime.

(21) Attacks against information systems, and, in particular, attacks

linked to organised crime, are a growing menace in the Union and globally,
and there is increasing concern about the potential for terrorist or
politically motivated attacks against information systems which form part
of the critical infrastructure of Member States and of the Union. This
constitutes a threat to the achievement of a safer information society and of
an area of freedom, security, and justice, and therefore requires a response
at Union level and improved cooperation and coordination at international
level.
 How the Law is Responding to a Changing Society 277

Although the Directive would seem to capture the urgency and

seriousness of the problem, it also tries to play down the danger of
cybercrime, compared to the tone in the press. For example, it uses the
word “menace” in the first sentence, rather than threat. Although they
seem to be synonyms, menace is often used to describe something as an
annoyance or something that is dangerous but may not pose an imminent
risk, whereas threat usually means a highly possible and immediate
danger. When the word “threat” is used, it is mitigated by the earlier
expressions “increasing concern”, “the potential” and, through the
comparative, “the achievement of a safer information society”.
In contrast, the possible serious consequences of cybercrime in the
future, which were de-emphasized in the press, are given full recognition
in the fourth Recital. Whereas the New Statesman reassured its readers
that:

(22) The apocalyptic cyber-warfare vision of Hollywood action-thrillers

is some distance from the reality, and the threat to our physical
infrastructure is less than the threat posed by potential attacks on
information infrastructure. The perception that foreign-based hackers could
blow up a gas pipeline or poison the water supply is – at least for the
moment – quite fanciful. (New Statesman 6)

The directive refers specifically to possible attacks on “critical

infrastructure”, presenting them as a serious threat, though mitigated to
some extent by the vague adjective “significant” to describe the impact
across borders. This vagueness continues with the use of the conditional
“could be understood”, which leaves open a wide area of interpretation,
but implying at the same time that it may not necessarily be limited to
what it then specifies.

(23) There are a number of critical infrastructures in the Union, the

disruption or destruction of which would have a significant cross-border
impact. It has become apparent from the need to increase the critical
infrastructure protection capability in the Union that the measures against
cyber attacks should be complemented by stringent criminal penalties
reflecting the gravity of such attacks. Critical infrastructure could be
understood to be an asset, system or part thereof located in Member States,
which is essential for the maintenance of vital societal functions, health,
safety, security, economic or social well-being of people, such as power
plants, transport networks or government networks, and the disruption or
destruction of which would have a significant impact in a Member State as
a result of the failure to maintain those functions.
278 Chapter Thirteen

The Directive seems to be primarily concerned with large-scale

cybercrime at a state level; indeed, the adjective ‘large-scale’ appears five
times with the collocate ‘cybercrime’, in contrast with the term ‘identity
theft’ that appears only once in Recital 14, even though it was a recurrent
issue in the press.

(24) Setting up effective measures against identity theft and other

identity-related offences constitutes another important element of an
integrated approach against cybercrime.

The main function of a Directive is clearly to give guidelines for

national legislators to follow. However, Recital 5 gives a detailed
description of a very technical term, botnet, firstly to emphasise the
seriousness and the capacity of cybercrime, thus heightening the need for
concern and action and secondly, to raise awareness and provide
information which is perhaps not yet common knowledge.

(25) There is evidence of a tendency towards increasingly dangerous and

recurrent large-scale attacks […]. This tendency is accompanied by the
development of increasingly sophisticated methods, such as the creation
and use of so-called ‘botnets’, which involves several stages of a criminal
act, where each stage alone could pose a serious risk to public interests.
This Directive aims, inter alia, to introduce criminal penalties for the
creation of botnets, namely, the act of establishing remote control over a
significant number of computers by infecting them with malicious software
through targeted cyber attacks. Once created, the infected network of
computers that constitute the botnet can be activated without the computer
users’ knowledge in order to launch a large-scale cyber attack, which
usually has the capacity to cause serious damage, as referred to in this
Directive.

The second part of the directive, the normative part, consists in 19

articles. It starts with a statement of subject matter, which “establishes
minimum rules concerning the definition of criminal offences and
sanctions in the area of attacks against information systems. It also aims to
facilitate the prevention of such offences and to improve cooperation
between judicial and other competent authorities.”
It is followed by definitions of terms used in the Articles, before going
on to describe the offences themselves. Like all statutory texts, EU
directives are formulaic and lexically abstract (Yankova 2008: 132),
though it would seem that this characteristic is pushed to an extreme with
the numerous repetitions of the expression, “Member States shall take the
necessary measures to ensure that”, as shown in the following
 How the Law is Responding to a Changing Society 279

concordance lines.

1 legal access to information systems Member States shall take the necessary
measures to ensure that, when commit
2 ticle 4 Illegal system interference Member States shall take the necessary
measures to ensure that seriously hi
3 Article 5 Illegal data interference Member States shall take the necessary
measures to ensure that deleting, da
4 nor. Article 6 Illegal interception Member States shall take the necessary
measures to ensure that intercepting
5 Tools used for committing offences Member States shall take the necessary
measures to ensure that the intentio
6 l offence. Article 9 Penalties 1. Member States shall take the necessary
measures to ensure that the offences
7 dissuasive criminal penalties. 2. Member States shall take the necessary
measures to ensure that the offences
8 for cases which are not minor. 3. Member States shall take the necessary
measures to ensure that the offences
9 ed primarily for that purpose. 4. Member States shall take the necessary
measures to ensure that offences ref
10 structure information system. 5. Member States shall take the necessary
measures to ensure that when the off
11 10 Liability of legal persons 1. Member States shall take the necessary
measures to ensure that legal person
12 ntrol within the legal person. 2. Member States shall take the necessary
measures to ensure that legal person
13 anctions against legal persons 1. Member States shall take the necessary
measures to ensure that a legal pers
14 ed for committing the offence. 2. Member States shall take the necessary
measures to ensure that a legal pers
15 sed Union agencies and bodies. 3.Member States shall take the necessary
measures to ensure that appropriate

Articles 3-7 establish five offences covering a variety of criminal acts,

namely illegal access to information systems, illegal system interference,
illegal data interference, illegal interception and tools used for committing
offences. Each one is defined very specifically, as for example illegal
system interference, which has no less than six verbs to describe the
various types of activities it may involve in view of present and future
technological developments. In this way it aims to be as all-inclusive, but
precise as possible, which is typical of statutory language.
280 Chapter Thirteen

(26) Article 4
Illegal system interference
Member States shall take the necessary measures to ensure that seriously
hindering or interrupting the functioning of an information system by
inputting computer data, by transmitting, damaging, deleting, deteriorating,
altering or suppressing such data, or by rendering such data inaccessible,
intentionally and without right, is punishable as a criminal offence, at least
for cases which are not minor.

Article 8 extends the range of behaviours considered as punishable

criminal offences to include incitement, aiding and abetting and attempting
one of these offences. Indeed, the Directive invites a tighter and tougher
approach to fighting cybercrime, which is reflected in the terminology
used. The British Computer Misuse Act 1990 referred to “unauthorised
access”, whereas the Directive uses a much stronger and univocal
definition of “illegal access” and “access without right”. This latter term is
defined as “not authorised by the owner or by another right holder of the
system or of part of it, or not permitted under national law” (Article 2 (d)),
so that it becomes not only a question of permission, but also explicitly of
legality.
This more rigid attitude is also reflected in the penalties proposed for
these offences. Although Article 9 defines the penalties as “effective,
proportionate and dissuasive” in the vague language characteristic of legal
discourse, it does give some indication of the degree of severity.

(27) Article 9
Penalties
1. Member States shall take the necessary measures to ensure that the
offences referred to in Articles 3 to 8 are punishable by effective,
proportionate and dissuasive criminal penalties.
2. Member States shall take the necessary measures to ensure that the
offences referred to in Articles 3 to 7 are punishable by a maximum term
of imprisonment of at least two years, at least for cases which are not
minor.

Paragraph 2 follows the formula “Member States shall take the

necessary measures to ensure that”, but then uses a conceptually complex
expression, because it introduces what, at first glance, may seem to be
almost antithetical and contradictory. It is setting a maximum term of
imprisonment that has to be of at least two years, so it is a minimum for a
maximum. The repetition of “at least” to specify that this should apply to
the vaguely defined “minor cases” makes the reading more cumbersome.
The next paragraph repeats the expression with yet another vague
 How the Law is Responding to a Changing Society 281

adjective “significant”, which leaves Member States with a lot of room for
interpretation.

(28) Member States shall take the necessary measures to ensure that the
offences referred to in Articles 4 and 5, when committed intentionally, are
punishable by a maximum term of imprisonment of at least three years
where a significant number of information systems have been affected
through the use of a tool, referred to in Article 7, designed or adapted
primarily for that purpose.

Article 9 also lays out heavier penalties for offences committed by a

criminal organisation that cause serious damage or are committed against
critical infrastructure in Paragraph 4, thus recalling the fears expressed in
the press. Articles 10 and 11 refer to the liability of legal persons,
especially in the supervision and control of cyber security.
One of the most serious difficulties facing computer crime legislation
is the fact that it is limited in its ability to tackle the global phenomenon of
cybercrime. As we saw, attacks can come from anywhere. The Directive
provides for jurisdiction to be established taking into consideration firstly,
the offence, the criminal act itself, secondly, the offender, as a national or
otherwise and thirdly, the target of the criminal act, all in relation to
whether they are present in or outside the territory.

(29) Article 12
Jurisdiction
1. Member States shall establish their jurisdiction with regard to the
offences referred to in Articles 3 to 8 where the offence has been
committed:
(a) in whole or in part within their territory; or
(b) by one of their nationals, at least in cases where the act is an
offence where it was committed
2. When establishing jurisdiction in accordance with point (a) of
paragraph 1, a Member State shall ensure that it has jurisdiction where:
(a) the offender commits the offence when physically present on its
territory, whether or not the offence is against an information system on its
territory; or
(b) the offence is against an information system on its territory,
whether or not the offender commits the offence when physically present
on its territory

The first clause sets up the premise that an offence is committed in the
territory or by a national. The second clause stipulates that either the
offence was committed in the country or the target was in the country.
This is a complicated triangle made up of offender, offence and location,
282 Chapter Thirteen

which seems to have been overcome once again by breaking down the
elements into more specific points. If every Member State applies these
rules, then a network of prosecutions will be set up making it more
difficult for the cybercriminals to slip through the net, at least in Europe.
Articles 13 on the Exchange of information and 14 on Monitoring and
statistics aim to promote cooperation and awareness among Member
States. The last articles 15-19 are the standard articles on the provisions
about is adoption, transposition, entry into force and addresses.

Discussion and conclusion

While cybercrime is an unwanted side effect of the Internet age, it is
also part of a broader crime landscape. If there is a use for something,
someone will always find a way to abuse it, and this includes computer
technology and the connectivity provided by the Internet. Crime can never
be eliminated, so tackling cybercrime is less about ‘winning the war’ and
more about mitigating the risks associated with using the Internet. The
transposition of the Directive and the hoped-for cooperation in policing
and monitoring will be an attempt to mitigate these risks and in so doing,
ease some of the fears fuelled in the press. Indeed, as we saw in the
analysis, the Directive responds to many of the issues and concerns raised
in the press, especially as it aims to raise awareness about cybercrime and
tighten measures against it.
The analysis also revealed some points about Directives. The two parts
that were analysed in detail show very different styles. On the one hand,
many of the characteristics of EU English mentioned above, such as
complex sentence structures and abstract words, are present in the Recitals
that are more articulate and discursive, whereas the Articles are subdivided
into numbered paragraphs made up of short sentences, with a strong
formulaic character.
Here are just a few examples to illustrate the type of style in the
Recitals. The first example is very wordy and opens in a roundabout way,
“it has become apparent from the need”, followed by a complex noun
phrase to gently lead the reader into the critical point of “stringent criminal
penalties”.

(30) It has become apparent from the need to increase the critical
structure protection capability in the Union that the measures against
cybercrime should be accompanied by stringent criminal penalties
reflecting the gravity of such attacks.

In the second example the sentence structure is top-heavy. The subject,

 How the Law is Responding to a Changing Society 283

a complex noun phrase “a direct intent requirement”, appears after two and
half lines of clauses that add more and more details and specifications. The
sentence ends with yet another subordinate clause and lastly a passive
form, all of which makes it sound very unnatural.

(31) Motivated by the need to avoid criminalisation where such tools are
produced and put on the market for legitimate purposes, such as to test the
reliability of information technology products or the security of
information systems, apart from the general intent requirement, a direct
intent requirement that those tools be used to commit one or more of the
offences laid down in this Directive must be also fulfilled

There are also many cases in which words are used in a peculiar
manner. Recital 10 asks for penalties that are ‘effective, proportionate and
dissuasive’. The choice of the term ‘dissuasive’ instead of the more usual
‘deterrent’ may have been determined by the need for three adjectives for
translation purposes or to make the sentence more balanced, but it
weakens the intended meaning. Another example of an unusual use of
word appears in the opening Recital, “The objectives of this Directive are
to approximate the criminal law”. The verb “approximate” can be
understood, in other EU words, as “harmonize”.
Although the Recitals appear to be discursive, they lack any
interpersonal or persuasive features of communication. They are an
expository, rather than argumentative text, thus remaining clearly in the
tradition of legal discourse. The EU Guide to drafting says that recitals
should contain “the statement of reasons for its adoption” and indeed, as in
contracts, the Recitals give just factual information, even if their purpose
is explain and ‘justify’ the Directive. There are no, or at least very few,
argumentative structures, such as conjunctions, expressing causal or
concessive relations.
Klimas and VaiþiukaitƝ (2008) argue there is actually no legal reason
for recitals in EU legislation, but rather a political necessity for
“reassurance” (2008: 18). Given the supranational nature of the EU, any
legal act of general application displaces the legal jurisdiction of the
Member States and therefore needs to “attempt at a justification” (2008:
19). This may explain the large number of recitals on a variety of topics,
ranging from the definitions of offences and penalties, the threats posed by
cybercrime, and in particular the urgent need for collaboration between
Member States in the monitoring and policing of cybercrime which raise
delicate questions of human rights and freedom. In fact, the Directive
firmly defends them in two recitals, Recital 21 and in the following
example, Recital 27, to forestall any criticisms and objections about
284 Chapter Thirteen

encroaching upon personal freedoms.

(32) This Directive respects human rights and fundamental freedoms and
observes the principles recognised in particular by the Charter of
Fundamental Rights of the European Union and the European Convention
for the Protection of Human Rights and Fundamental Freedoms, including
the protection of personal data, the right to privacy, freedom of expression
and information, the right to a fair trial, the presumption of innocence and
the rights of the defence, as well as the principles of legality and
proportionality of criminal offences and penalties. In particular, this
Directive seeks to ensure full respect for those rights and principles and
must be implemented accordingly.

The overriding characteristic of the Directive is vagueness, which is, in

any case, a well-acknowledged feature of legal discourse. It allows room
for national legislators and later courts to interpret the normative
provisions in accordance with their legal cultures, traditions and customs,
which may differ greatly. A very clear example of vagueness can be found
in Article 9 Paragraph 2 quoted above in (27).

(33) 2. Member States shall take the necessary measures to ensure that
the offences referred to in Articles 3 to 7 are punishable by a maximum
term of imprisonment of at least two years, at least for cases which are not
minor.

The negative “not minor” is vague and undefined, and implicitly refers
back to Recital 11 which stated that:

(34) A case may be considered minor, for example, where the damage
caused by the offence and/or the risk to public or private interests, such as
to the integrity of a computer system or to computer data, or to the
integrity, rights or other interests of a person, is insignificant or is of such a
nature that the imposition of a criminal penalty within the legal threshold
or the imposition of criminal liability is not necessary.
‘Minor’, therefore, means “insignificant” damage or risk or the
imposition of a criminal penalty is not “necessary”, but the concept still
remains vague, perhaps even vaguer.
Vagueness is necessary to leave to the discretion of the Member States
and the courts to interpret the articles and intentions of the European
Parliament in accordance with their own legal traditions and culture, as
well as their national interests. Nevertheless, a doubt remains as to what
extent this will actually lead to a close approximation of the criminal law
in Member States in the area of attacks against information systems.
 How the Law is Responding to a Changing Society 285

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 CONTRIBUTORS

Glen Michael Alessi is a Researcher at the Department of Communications

and Business Studies at the University of Modena and Reggio Emilia,
Italy. His research interests include corpus assisted discourse analysis,
critical genre analysis and intercultural communication. His recent
publications examine the role of interdiscursivity and intertextuality in
forming new or hybrid generic norms in professional and institutional
discourse. He is the co-editor of a soon to be published volume with
Palgrave-Macmillan entitled The Ins and Outs of Business and
Professional Discourse Research: Reflections on Interacting with the
Workplace.

Lesley Allport is a PhD Researcher at the Birmingham Law School where

she is examining the growth of mediation, identifying similarities and
differences of practice across a number of contexts of mediation delivery,
both within and outside the civil justice system. In 2005 she completed a
European Master’s Degree in Mediation at the Graduate Institute Kurt
Bosch, Geneva. As part of this she developed a model of supervision
specific to mediation. She sits on the editorial board of a new journal soon
to be published in the UK entitled “Mediation: Theory and Practice”. Her
academic interest in the field of conflict resolution is the result of a long
career in mediation spanning 25 years. Working initially as a family
mediator in the 1980s, Lesley co-authored a publication by the Joseph
Rowntree Trust, providing guidelines for mediators working with
domestic abuse. She has played a major part in developing new practice,
particularly in the context of Special Educational Needs and Disability
Conciliation. She mediates in workplace and community disputes and is
trained to mediate in cross border family disputes and child abduction
cases. Her publications include Safe Solutions: A Resource Pack for
Mediators and Others Working with People Affected by Abuse in the Home
(co-authored with L. Bramwell, Brighton, Pavillion Publishing, 1999).

Giuseppe Balirano, PhD in English linguistics, is associate professor at

the University of Naples L’Orientale. His current research and publications
focus mainly on language, identity, and multimodality, varieties of English
and humour. He is the founder of a research consortium, I-LanD, which
288 Contributors

investigates identity, language and diversity. His major publications

include: Languaging Diversity (co-edited with Nisco M.C., 2015),
Language, Theory and Society (co-edited with Nisco M.C., 2015);
Variation and Varieties in Contexts of English (co-edited with Bamford J.
and Vincent J., 2012); Indian English on TV (2008).

Aditi Bhatia's main interest is in the area of discourse analysis, with

particular reference to the study of political discourses. Her research
employs a novel multi-perspective theoretical framework, that of 'discursive
illusions', on which she has published in a number of international
journals, including the Journal of Pragmatics, Journal of Language and
Politics, World Englishes, and Discourse & Society, and her recently
published monograph, Discursive Illusions in Public Discourse: Theory
and Practice (Routledge, 2015). She is now engaged in further extending
the concept of discursive illusions by investigating the discourses of
Public Square movements and Workplace Diversity Initiatives.

William Bromwich is a researcher and lecturer in English linguistics at

the Marco Biagi Department of Economics at the University of Modena
and Reggio Emilia, and at the Doctoral Research School at the Marco
Biagi Foundation in Modena. His research interests include legal English,
courtroom discourse, the linguistic construction of social reality, language
and disability, and metaphor in economic and financial discourse. An
expert witness at the Tribunal of Bologna, he is also English language
editor of the International Journal of Comparative Labour Law and
Industrial Relations, and Ratio Juris: An International Journal of
Jurisprudence and Philosophy of Law.

Silvia Cavalieri holds a PhD in Comparative Languages and Cultures

from the University of Modena and Reggio Emilia, Department of
Linguistic Studies on Language, Text and Translation. She lectured at the
University of Modena and Reggio Emilia, University of Ferrara,
University of Parma and University of Milan. She has held a research
grant at the University of Milan for the last 4 years. She has recently
taught CLIL courses organized by the Dep. of Comparative Studies on
Languages and Cultures. Her research interests include: ESP, legal
language, courtroom discourse, and academic discourse.

Jan Engberg is Professor of Knowledge Communication at the Business

Communication Department, School of Business and Social Sciences,
University of Aarhus, Denmark. His main areas of research interest are the
 Constructing Legal Discourses and Social Practices 289

study of texts and genres in the academic field, cognitive aspects of

domain specific discourse and the relations between specialised
knowledge and text formulation as well as basic aspects of communication
in domain-specific settings. His research is focused upon communication
and translation in the field of law as well as other fields of academic
communication like climate change communication. He is especially
interested in the links between the knowledge of individuals and
conceptual meaning in fields of specialized communication and the
implications of these links for the way we conceptualize meaning.
Furthermore, he is co-editor of the international journal Fachsprache and
member of the editorial/advisory boards of a substantial number of
international scholarly journals.

Giuliana Garzone is Full Professor of English, Linguistics and

Translation at the University of Milan, Italy. Her research interests are
mainly in English for Specific Purposes, which she has explored in a
discourse analytical perspective, integrating it whenever necessary with
corpus linguistics. She has co-ordinated several research projects and
published extensively on legal, scientific and business discourse as well as
on translation and interpreting. Her latest publications include the volume
“Le traduzioni come fuzzy set. Percorsi teorici e applicativi” (Translations
as a fuzzy set. Theory and applications”) (2015), “The Legal Blog
(Blawg): Generic Integrity and Variation” (2015); “Evolutions in Societal
Values and Discursive Practices: Their Impact on Genre Change” (2014),
“Investigating Blawgs through Corpus Linguistics: Issues of Generic
Integrity” (2014) and “Variation in the use of modality in legislative texts:
focus on shall” (2013). She is editor-in-chief of the journal Lingue Culture
Mediazioni / Languages Cultures Mediation, and is co-editor of the series
"Lingua, traduzione, didattica" for the publisher FrancoAngeli. She sits on
the advisory board of the international journals Text & Talk and Journal of
Multicultural Discourses.

Maria Cristina Nisco, PhD in English linguistics, is research fellow at the

University of Naples L’Orientale. Her current research areas include the
language of the press and news discourse, media studies and corpus-based
discourse analysis, as reflected in her book Framing Agency in the 2011
UK Riots. A Corpus-Based Discourse Analysis of British Newspapers
(forthcoming). She has also researched and published on language and
identity – as the co-editor of Languaging Diversity (2015) and Language,
Theory and Society (2015) – and on varieties of English, having authored
The Routes of English: (Un)Mapping the Language (2010).
290 Contributors

Stefano Ondelli is senior lecturer in Italian linguistics at the University of

Trieste (IUSLIT, Department of Legal Language, Interpreting and
Translation Studies). His research activity combines qualitative and
quantitative approaches and focuses on teaching Italian as a second
language, legal Italian, the language of translators and interpreters, the
language of the press, the fashion industry and politicians. His main
publications include La lingua del diritto: proposta di classificazione di
una varietà dell'italiano, Roma, Aracne editrice (2007); La sentenza
penale tra azione e narrazione, Padova CLEUP (2012); Realizzazioni
testuali ibride in contesto europeo. Lingue dell’UE e lingue nazionali a
confronto, Trieste, EUT (2013).

Marilyn Pasqua is currently Contract Professor of ESP/ESL at the

University of Calabria, Italy. She holds a Diploma in TESOL and Applied
Linguistics, University of Leicester (UK) and is now completing a PhD in
Linguistics (LSP) and Interdisciplinary Studies. Her main research
interests are in Second Language Acquisition and Pedagogy, Bilingualism,
Critical Discourse Analysis, ESP and Sociolinguistics. She is author of L1
interference in EFL: Present Tense and Aspect (in Academic Exchange
Quarterly, Fall 2012, Vol. 16, Issue 3, New York, USA). She is also
Feature Editor for Volume 17, Issue 1 (2013) and Volume 18, Issue 2
(2014) of the journal Academic Exchange Quarterly on Second Language
Acquisition and Pedagogy.

Anna Franca Plastina is tenured Researcher and Aggregate Professor of

English at the University of Calabria, Italy. Her main research interests lie
in the fields of Critical and Multimodal Discourse Analysis, LSP, CALL
and Psycholinguistics. Her most recent publications include: The Counter-
Hegemonic Discourse of Biodiversity: CDA of Vandana Shiva’s Honorary
Doctorate Acceptance Speech. In Balirano/Nisco (eds.), Cambridge
Scholars Publishing (2015); Do-It-Our-Way or Do-It-Yourself? ESP
Learner Control in Personal Learning Environments, IJCALLT (2015);
Mashing Up the Web for Academic Needs: A Study on Interdiscursivity
and Genre Colonization. In Poppi/Schmied (eds.), Officina Edizioni
(2015); Diagnostic News Delivery: A Microanalysis of the Use of Shields,
In Zuczkowski/Bongelli/Riccioni/Canestrari (eds.), John Benjamins
Publishing (2014); Self-Construction of Legislative Discourse through
Mashups: a Multi-Perspective Analysis. In Bhatia/Garzone/Salvi/Tessuto/
Williams (eds.), Cambridge Scholars Publishing (2014); A European
 Constructing Legal Discourses and Social Practices 291

Approach to Language Teaching: Developing Competency in the Usage of

Web 2.0 Tools, In Pérez/ Ráez Padilla (eds.), Peter Lang (2014).

Gianluca Pontrandolfo is Research and Teaching Assistant at the

University of Trieste (IUSLIT, Department of Legal Language,
Interpreting and Translation Studies) where he lectures on general and
specialised translation from Spanish into Italian. He combines his activity
as free-lance translator with his academic and research projects. His
research activity focuses on translation-oriented legal terminology and
phraseology, from a contrastive (Spanish, Italian, English) and corpus
perspective. In line with his PhD thesis (2013), which deals with a quali-
quantitative study of legal phraseology in a trilingual corpus of criminal
judgments (COSPE), his publications focus on the relationship between
language and law, specialized genre studies, texts linguistics, translation
training. He has been recently involved in the translation of the Italian
Code of Criminal Procedure into English (Cedam/Wolters Kluwer, 2014),
being one of the two translators and the phraseological expert of the team.
He is also member of CERLIS (Research Centre on Languages for
Specific Purposes) of the University of Bergamo.

Chiara Preite is Associate Professor in French Language and Translation

at the University of Modena and Reggio Emilia, Italy. She holds an MA in
Legal Translation from the University of Genoa, Italy, and a PhD in
French Linguistics from the University of Brescia, Italy. Her main
research interests lie in the fields of legal French, lexicology, lexicography
and specialised lexicography, popularisation of legal knowledge. She has
published widely on these topics and is the author of the volume Langage
du droit et linguistique. Etude de l’organisation textuelle, énonciative et
argumentative des arrêts de la Cour (et du Tribunal) de Justice des
Communautés européennes.

Tarja Salmi-Tolonen, Research Fellow at the University of Turku,

Faculty of law where she also teaches Legal Linguistics and proactive law
and contracting, she is also the former head and professor of Legal
Linguistics at the University of Lapland, Finland. Her recent interests are
in the discourse of language rights and linguistic justice. She is also
engaged in studying language risks and international commercial
arbitration in action, forensic linguistics and multilingual judicial
procedures. She has held research and teaching posts in several
universities and the Academy of Finland. She has worked as a visiting
scholar at the University of Cambridge, UK and lectured in the US,
292 Contributors

Europe and Asia. Her recent publications include (2014) Interpersonality

and Fundamental Rights. In Breeze, Ruth / Gotti, Maurizio / Sancho
Guinda, Carmen (eds.) Interpersonality in Legal Genres. Bern: Peter
Lang. 63-86; (2008) Language and the Functions of Law: A Legal
Linguistic Study. Turku: Painosalama.

Judith Turnbull is a foreign-language assistant at the Faculty of

Economics, Sapienza University of Rome. Her research interests include
discourse analysis applied to the fields of economics and law and cross-
cultural communication, with a particular focus on websites. Her recent
publications include Online Knowledge Dissemination: How to make the
Dismal Science Less Dismal (forthcoming); Knowledge dissemination
online: the case of health information (forthcoming); Tracking the
evolution of genres: the case of corporate websites (2014); Expert to
Layman Communication: Legal Information and Advice on the Internet
(2014); Building, Enhancing and Defending Reputation in a Corporate
Website (2013); The Blogs of the European Commission: Public-private
Space in a Professional Institutional Context (2013).
 INDEX
access to justice 58, 60 – 61, 110
advantage, competitive 88 – 105
advocacy 239
alternative dispute resolution 191,
193, 195, 196, 204
anaphoric 68
anchoring mechanisms 134, 137 –
140 see also social
representations theory
Antitrust, Competition Policy and
Consumer Rights 233
Appraisal 65, 250 – 266
Appreciation 96, 175 – 177, 182,
186, 188
Argumentation 2, 17, 154, 162, 171
– 191, 216, 242, 259
argumentative connectives 172, 178
– 188
articles 36, 50 – 51, 147, 149 – 156,
158, 160, 164, 166, 240, 267,
269, 271, 273, 275
attitude markers 75
autopoiesis 40 – 41
banking 90, 93, 97
basic vocabulary distribution 151,
155, 167
biodiversity 129 – 130, 135 – 136,
140, 142
biological laws 130, 139
boosters 75, 77
cataphoric 68
client discursive agency 264
client-centred approach to law 250,
261, 262 – 263
code gloss 71, 73 – 74
collaboration 200 – 201, 276, 283
communication 29, 36 – 39, 41 – 53,
64, 66 – 67, 73 – 74, 91, 94,
131, 174, 192, 197 – 198, 201,
209 – 227, 231, 240, 250 – 251,
258 – 260, 263, 267, 271, 283
comparable corpora 173, 175, 179,
188
comparative law 28 – 29, 39 – 40,
44
complementation 175, 179, 183 –
185, 187
concession 5, 175, 179 – 182, 187
conclusion 162, 173 – 175, 177 –
179, 184 – 187
consumer review websites 230 –
249
Corporate Criminal Liability 28 –
56
corpus analysis 2, 21, 46 – 47, 106,
113, 120 – 121, 174 – 175
Corpus-based Discourse Analysis
106 – 128
counter-hegemonic discourse 132,
138, 142
court judgments 9, 21, 26
court judgments as genre 147, 150 –
156, 166 – 167
Court of Justice of the European
Union 176 – 179, 181 – 183,
186 – 188
Court of Cassation 152, 154
Critical Discourse Analysis 92 – 94,
106, 111 – 113, 133 – 134
critical genre analysis 210
cybercrime
cost of 268
definition of 268 – 269
in the press 271 – 276
legislation on 276 – 282
public perception of 269, 271
deceptive reviews 235, 244, 246
294 Index

depersonification; depersonify 99 – fake reviews 230 – 238, 242 – 243,

100 245 – 248
dialogism 2 – 27, 156, 162, 166 – frame marker 68, 70, 74
167 freelance writers 230, 243 – 244,
discourse community membership 246
238, 247, 269 – 270 French judgments 174, 178, 188
disintermediation 233 fundamental rights
disputants 192, 196 – 197, 200, 202 human rights 12 – 13, 19, 59 –
disputes 179, 191 – 193, 200 – 206 60, 62 – 63, 69 – 71, 79 –
diversity, definition 88 – 89, 92, 94 80, 94, 100 – 101, 106, 108
– 95 – 109, 114, 123 – 124, 130,
diversity, initiatives 88 – 93, 97 – 283 – 284
99, 101 – 102 basic rights 58
double negatives 147, 153 – 156, globalization 132, 142
160, 165 – 166 grounds for the decision 146, 150,
ecological discourse 129 – 144 176, 179, 185 – 186
emancipated representations 132, hedges 75, 77, 166, 214, 217, 223
138, 142 see also social hegemonic representations 132, 138,
representations 142 see also social
enacting terms 270 representations
endophoric markers 70 hybridity 239 – 241, 243
engagement markers 76 institutionalised language of EU
English judgments 2 – 27, 163 – 114, 118
167, 171 – 190, case law 42, 49, 78, 112, 118, 180 –
Equal Opportunities Commission 181, 202, 247
(EOC) 89, 96 insurance claims adjustment 209 –
EU borders 119, 125, 227
EU Directives intention 64 – 65
style of 270 – 271, 282 interactive properties 70 – 75
language of 270 – 271, 279 – interdiscursivity 207, 210, 212, 226,
280 230 – 231, 243 – 246,
EU legal discourse 122, 125 Internet 46, 50, 74, 230 – 249
EU legislation 130, 135 – 139, 141 Interpersonal communication 29, 36
– 142, 276 - 283 – 38, 43 – 53
EU plant reproductive material law interpersonal meaning 66 – 67
129 – 144 investigative report writing 210,
European Court of Justice 109, 171 215, 218 – 219, 225 – 226
– 190, jargon 95 – 96, 202
Evaluation 65, 162, 210, 213 – 216, judgement 251 – 252, 254, 256 –
219 – 223, 269 – 272, 275 257, 263
Evidentials 71 judgemental discourse 251, 253 –
Explanation 175, 179, 182 – 183, 255, 257 – 263
fair trial 58 – 62, 66, 70, 76, 83, 85, justice 58, 60 – 61, 68 – 71, 110,
284 130, 191 – 208, 251, 261, 276
fairness 73 – 75, 78, 81, 191, 195, justification 175, 179, 182 – 183,
251 283
 Constructing Legal Discourses and Social Practices
Knowledge Communication 36 –
39, 41 – 43, 53
languaging refugeehood 106 – 128
lawyer competence 258
lawyer performance 250 – 266
lawyer-centred practice 250
lawyer-client communication 250 –
251
lawyers 51, 62, 191 – 208, 210 –
212, 226, 250 – 266
legal client dissatisfaction 250 – 251
legal client reviews 251 – 253
legal concepts as balancing
opposing interests 32
legal concepts as social facts 29
legal discourse 2 – 27, 64, 116, 122,
125, 131, 142, 172, 176, 188,
210 – 212, 217, 280, 283 – 284
legal drafting 78, 80, 162 – 163,
179, 283
Legal Linguistics 28 – 56,
legal system 28 – 29, 32 – 33, 36, 45
– 49, 53, 89, 91, 95 – 96, 172,
176, 178, 195, 197, 202, 231,
251
lexical density 202
lexical measures 150
linguistic rights 58, 70
litotes 148 – 149, 157, 160
logique juridique 174 – 177
management, talent 90, 97 – 100
managing diversity 91, 98, 101 –
102
mandatory shall 70
mediation 191 – 208, 213, 259, 262
mediators 179, 191 – 208, 211, 287
metadiscourse 61, 63, 65 – 66, 70,
75, 83, 172, 174
metaphor 91, 93, 98 – 100, 134, 200
– 201, 271
migrant(s) 106 – 108, 111, 116, 118,
121 – 125
migration flows 109 – 110, 116, 118
multiple negatives 146 – 170
Mutual Responsibility 200
national legal culture 39 – 40
295
necessity, legal 88 – 105
negation 2 – 27, 156 – 159, 161 –
163, 165, 202
negative morphological markers 148
– 149, 167
negative prefixes 151, 153, 155,
157, 159, 161, 165 – 167
New York State Attorney General
Schneiderman 231, 241 – 242,
245 – 247
newspaper articles 147, 149 – 156,
166, 275
objectifying mechanisms 134 see
also social representations
theory
online reviews 236, 243, 250, 252
orientation see appraisal theory
paralegal discourse 211, 226
parallel corpora 173
parties 19 – 20, 59 – 60, 69, 82, 150,
154, 176 – 177, 179, 182, 192 –
193, 195 – 198, 200 – 201, 203
– 206, 217, 225
party determination 195, 203
personal and spatial deixis 119
plain language 147, 162
polemic representations 132, 138,
142 see also social
representations
preamble 78, 181, 276
quantitative analysis 9, 147 – 152,
158 – 159, 163 – 165, 167, 213
recitals 270, 276, 282 – 283
recontextualisation 212
refugee(s) 106 – 128
reparation 73
repatriation 120 – 123, 125
reputation management companies
230 – 249
resemanticization 231, 240, 244
resolution 59, 62, 191 – 192, 195 –
200, 202 – 204, 206 – 207
returnee(s) 119, 121 – 122
review ratings 230, 232 – 234, 250,
258
reviewer credentialing program 237
296 Index

reviewer reputation 237 statistical text analysis 114, 179

right to language 58 – 60 Tampere Programme 109 – 110,
Search Engine Optimization (SEO) 112, 117, 125
233 – 235, 243 – 245, 247 The Hague Programme 109 – 110,
seed legislation 129 – 144 see also 112, 117 – 118, 125
EU legislation third-country national(s) 119
settlement 191 – 194, 196, 198, 203 Ticino Cantonal Court of Appeal
– 204, 206 149
social esteem 252 – 257, 263 transition markers
social media 230 – 231, 243 – 244, addition 70
246, 250 comparison 70
social representations theory 129 – consequence 70
144, translation 39, 58 – 87, 113, 171 –
social sanction 252 – 254, 256 – 190, 270, 283
258, 263 TripAdvisor 230 – 235
social signification 132 UN Convention Relating to the
socio-cognitive mechanism 134 see Status of Refugees 107 – 109,
also social representations 120, 122, 125
theory user-generated reviews and ratings
Socio-functional systems 29, 37, 40 233
– 44, 52 – 53 vagueness 68, 107, 113, 210, 271,
sociolegal medium constraints 253 – 277, 284
254, 258 – 263 Vandana Shiva 130, 133, 135 – 138,
sociolegal networking sites 253, 140 – 142
262, 264 verb tense distribution 155
stance 65 – 66, 197, 211, 218, 220, Yelp algorithm 234
222, 251, 258, 269, 271 Yelp filter 234, 244 – 245