法律語(yǔ)言的語(yǔ)言特征及其翻譯原則（外文翻譯資料）

1、statutes and contracts: an analysis of legal speech acts inthe english language of the lawthe aarhus school of business, department of english, fuglesangs all4，dk-8210 aarhus v, denmarkabstractthis paper is concerned with the language used in legal speech acts in legislative texts and contracts in t

2、he field of english contract law. the central objects of study are regulative functions with a particular view to establishing realization patterns of the rhetorical functions of directive and commissive acts. the findings show that the language of the law characteris-tically selects patterns of reg

3、ulatives distinct from, for example, the patterns typically selected in everyday conversational english. the characteristics of the language of the law can be interpreted within the adherence to legal institutions, as well as in terms of the face redress required by the socio-pragmatic situation.l b

4、ackgroundthe field of legal language within the written medium is unique with regard to distinctive lexical features, such as technical terms, archaic expressions, etc., and it is renowned for its syntactic complexity, which has given rise to a number of studies of these aspects (see, e.g. danet, 19

5、85: 278-287). however, with the exception of a few studies (e.g. kurzon, 1986; werther and helmersen, 1989), little attention has been given to pragmatics and politeness in written legal discourse. in the field of pragmatics (including work on politeness phenomena), research has been concerned prima

6、rily with oral discourse, often based on non-sequential hypo-thetical data, and very few studies are concerned with pragmatics and politeness in written discourse (see, e.g. myers, 1989; pilegaard, 1990). this paper presents a pragmatic study of a highly specialized discourse, viz. the language of a

7、uthentic legislative texts and contracts, which are analyzed for socio-pragmatic occurrence and pragmalinguistic realization of regulative acts. politeness is discussed within a consideration of the imposition of regulative acts. this research has been financed partly by the danish research council

8、for the humanities and i would like to express my gratitude for their support. the article is based on my findings published inpreliminary versions as trosborg (1991) and blom and trosborg (1992). tionship which exists between the legislative power and the citizens, in which case the former has the

9、authority to make rules for citizens to obey in order to maintainlaw and orde匚 an empirical question to be answered in this connection is whether this difference in authority results in a difference, for example in directness levels, between the two kinds of the law, i.e. between the language used i

10、n legislation compared to the lan-guage employed in private law (contracts and deeds).commission shall be paid on a quarterly basis and shall be based on the previous quarter's nett sales. (4-001 )employees shall work such overtime as the company from time to time thinks necessary according to t

11、he needs of its business. (4-014)as in (4-001), the illocution is frequently constructed by the application of pas-sivization involving agent suppression, and/or by the use of non-human subject. those are prominent features of the legal register, and may be explained in terms of face redress in orde

12、r to reduce the face-threat involved in issuing a directive.4.1.2. prohibitionsin the regulation of behaviour by means of prohibitions, the modal shall is used almost exclusively (6.0% out of 6.8% of the strategies observed):the representative shall not be entitled to enter into any contract or obli

13、gation on behalf of the company without the express written consent of the company being first obtained. (4-016)nothing in this clause shall confer any right upon the distributor to return products purchased by it pur-suant hereto or to refuse or delay payment for them. (4068)the officer shall have

14、no entitlement to any further period of holiday with or without remuneration unless expressly agreed between the company and the officer. (4-006) the three examples reflect some of the different types of negation which were mentioned in 221242 rights4.2,1. permissionin contracts, a symmetrical relat

15、ion holds between the two parties, either of which is able to grant permission to the other party:the hirer may determine the hiring at any time by giving one month's previous notice in writing expir-ing on one of the days appointed for payment of rent (4-015)the owner hereby grants to the distr

16、ibutor the sole and exclusive right to licence, sub-licence and generally to market, distribute and support the software (4-047)the company hereby gives the officer permission to reside with his wife and children in the dwelling-house and premises . as the companyfs representative (4006) statements

17、of permission amounted to 5.8% of the total number of strategies. 4.2.2. assignment of benefitliabilitythe examples below are linguistic manifestations of the subcategories (i) assignment of benefits, (ii) negated assignment of benefits, (iii) limitation of liability, and (iv) negated limitation of

18、liability, respectively:the company shall have power . to carry on its business alone or in association with any one or more persons (whether natural or legal) or by any one or more subsidiary companies (4-026)the duty to disclose contained in this clause shall not impose on either party any obligat

19、ion to develop any such modification or improvement (4-027)the carrier shall be relieved of its obligation to perform the contract to the extent that the performance thereof is prevented by failure of the trader (4-038)no liability whatsoever shall be accepted by the contractor for any alterations o

20、r additions carried out in contravention of this clause (4-059)43 constitutive rulesconstitutive rules establish the terms of the contract (for example, concerning lia bility), and spell out conditions relating to price, date, amount, etc. furthermore, they define expressions and terms in the contra

21、ct or supply information concerning application of these terms. examples typically involve lexical main verbs such as mean, apply, include, exclude, and constructions with be + copula."accident" includes exposure resulting from a mishap to a conveyance in which the assured is travelling (4

22、-021)the agent is responsible for finding out and notifying in detail of governmental and other requirements in the territory affecting this agreement (4-018)future reference by the use of the modal shall may indicate a constitutive spelling out a rule of the contract with a legal effect. any notice

23、 required to be served upon the owner or hirer hereunder shall be deemed to be duly served 48 hours after posting if sent by first class recorded delivery post (4-053)44 commissivesby making a promise a party to the contract commits him/herself before the law. promises were typically expressed by me

24、ans of performative verbs, such as agree, undertake, acknowledge, warrant, accept:the supplier warrants to the customer that the equipment marketed by the supplier is believed to be free from defects of workmanship and materials (4-057)the licensee acknowledges that the copyright in all written, pri

25、nted and photographed matter sup-plied by the grantor under this agreement shall belong to and remain vested in the grantor (4-027)the verbs promise and covenant were observed but they were not in frequent use.5. discussing the findingsno detailed comparison of the use of regulatives in legislative

26、texts compared with the use in simple contracts will be provided. a few comments shall suffice. in both types of legal documents, the category of direct directives dominates (leg-islation 47.6%, contracts 46.3%) with mandatory shall as the single most frequently used sub-category (legislation 21.4%,

27、 contracts 38.0%). a higher number of consti-tutives in statutes (39.3%) compared with contracts (22.7%) reflects the very func-tion in the former of establishing rules and regulations. commissives occurred only in contracts. a difference was observed in the use of explicit performatives in directiv

28、es compared with commissives. strategies of the prototype i hereby order you to do x were rarely observed, neither in statutes, nor in contracts, whereas strategies of the type i hereby promise to do x amounted to 9.5% in contracts this difference can be explained with reference to the face-threat (

29、see 121) involved in the two acts. when trying explicitly to enforce the desired behaviour (which is for the benefit of the sender and normally at the cost of the receiver) onto the receiver, the sender openly threatens the requesters right to remain unimpeded. this explains why explicit performativ

30、e verbs are avoided. on the contrary, when issuing a promise, the speaker commits him/herself (and not someone else) to carry out the act specified in the proposition, but does not impose on the other party. the promise is at the cost of the sender and believed to be for the benefit of the receiver.

31、 for these reasons, a promise is less face-threaten-ing to the receiver and the promise can be emphasized by being made explicit by means of a performative verb.when comparing the directives observed in english contract law with directives observed in everyday conversations, the selection of directn

32、ess levels differs markedly in the two domains (see trosborg, 1991).5 the strategies used most fre-quently in everyday conversational english belong to the category of conventionally indirect directives, which finding is in agreement with the findings of previous stud-ies (e.g. ervintripp, 1976 (ame

33、rican english), blum-kulka et alm 1989 (british and american english). querying the hearefs ability/willingness to perform a given act (could you spare me a cigarette ?avould you mind mailing this package for me?) amounts to 50.6% of the total number of strategies observed in conversational eng-lish

34、, while statements of the speaker's wishes and desires (1 would like you to send me a parts list) amount to 16.9%, altogether comprising 67.5% of the total number of strategies. these strategies occur neither in contract law, nor in contracts. the most frequent category in the language of the la

35、w and in contracts is direct ordering (47.6%, 46.3%, respectively), which is the category employed least fre-quently in the conversational data (9.6%). as for individual strategies, statements 5 the data of comparisonderivefromdiadic conversationsbetweennative speakersof englishelicited by means of

36、roleplay materialconstructedon the basis of anticipatedillocutionaryactswith a directive function. the rolerelationshipsbetweenthe two participantsvaried along two parameters: dominance* and 'social distance1, and the situationsinvolveda high 'degree of imposition*.5.1. the use of politeness

37、 markersin everyday conversations, the illocutionary force of directives is often hedged or mitigated by the inclusion of politeness markers (i wonder if you could possibly the language of the law, mitigators are almost absent (unlike the language employed in judgments and mediation, see maley, this

38、 volume). however, one device, which has been observed to occur frequently, is defocalization of agent as well as patient. a preliminary analysis has shown that only 19.4% of the observed directives in contract law have a human subject. depersonalization is one way of mitigating the impact of a dire

39、ctive on the addressee, as in such sum shall be recov-erable-regard shall be had. another reason for the high number of directives employing a non-human subject is the fact that the law operates by laying down its own constitutive rules with legal actants as subjects, such as 'this act； 'the

40、 provi-sions of this section1, ra statutory instrument1, fthe guaranteed in contracts, subjects pertaining to conditions of the contract1, such as price, data, amount, license fees, etc. amount to 23 of the subjects employed in regulative acts, and as such it is the second largest subject category (

41、only surpassed by collective nouns1 (35.4%). further discussion of this point is postponed to a future pape匚52 concluding remarksthis paper has analyzed the occuitence of legal speech acts in english contract law. it has pointed to declarations by means of the enactment formula as unique to legislat

42、ive texts. in contracts, explicit commissive acts occur as affirmative state-ments. furthermore, an analysis has been presented of directive acts observed in the corpus revealing the communicative acts of statements of obligation, statements of prohibition, statements of permission (involving assign

43、ment of rights1, limitation of liability1, and *assignment of benefits1), as well as constitutive statements as directive acts typical of the language of the law. when comparing the observed directives to directives observed in everyday conversations, it has been shown that the selection patterns, d

44、rawn from a continuum of directness levels, differ. legislative texts and simple contracts of english contract law show a predominance of direct strategies (statements of obligation and prohibi-tion), whereas conversational english favours conventionally indirect strategies. it was argued that this

45、difference could be ascribed to the external factors of the social situation, rather than to a difference in medium (written vs. spoken). further-more, it is not just a matter of the english language of the law being more direct than conversational english (no imperatives were observed); it is a que

46、stion of selecting strategies to express a specific communicative function in a particular sender/receiver relationship within the considerations of the telicity conditions1 of the act in question and within the socio-pragmatic requirements of the situation.法規(guī)與合同：法律語(yǔ)言行為在法律英語(yǔ)語(yǔ)言中的分析摘要:本文研究的是英國(guó)合同法領(lǐng)域法律文

47、本與合同中法律語(yǔ)言行為里語(yǔ)言的使用，研究的主 要內(nèi)容是用有特殊視角的規(guī)范功能來(lái)建立指示與命令行為的修飾功能的實(shí)現(xiàn)方式。結(jié)果顯示法 律語(yǔ)言多具有規(guī)范性特點(diǎn)，與日常對(duì)話中使用的英語(yǔ)有很大不同。法律語(yǔ)言的這種特點(diǎn)可以通 過(guò)與立法機(jī)關(guān)的傳承性以及社會(huì)語(yǔ)用學(xué)環(huán)境所要求的表面訴訟來(lái)理解。1.背景書面形式的法律語(yǔ)言是非常具有特色的，因?yàn)樗哂胁煌瑢こ５脑~匯特征，如實(shí)用專業(yè)術(shù) 語(yǔ)，古體詞表達(dá)等，并且法律語(yǔ)言也引起復(fù)雜的句式特征而著稱，這種特點(diǎn)引起了對(duì)這方面的 諸多研究(見(jiàn)danet,1985： 278-287)<>但是，除了很少的幾項(xiàng)研究之外(如kurzon, 1986;werther and h

48、elmersen,1989),很少有人將注意力投向書而法律語(yǔ)言的實(shí)用性和禮貌性。在語(yǔ)用學(xué)領(lǐng)域(包括有關(guān)敬語(yǔ)現(xiàn)象的研究)，研究的主要對(duì)象是口頭語(yǔ)言表達(dá)，它通常建立 與非連續(xù)的假設(shè)數(shù)據(jù)基礎(chǔ)之上，并且?guī)缀鯖](méi)有關(guān)于口頭語(yǔ)言的實(shí)用性和禮貌性的研究(見(jiàn) myers, 1989;dilegard,l 990)。本文將對(duì)高度專業(yè)化的語(yǔ)言進(jìn)行語(yǔ)用學(xué)研究，通過(guò)對(duì)真正法律文本和合同的語(yǔ)言分析來(lái)進(jìn) 行。其目的是為了語(yǔ)用學(xué)的使用及使用語(yǔ)言學(xué)的規(guī)范性行為的實(shí)現(xiàn)。在規(guī)范性行為的考慮范圍 之內(nèi)進(jìn)行禮貌性的討論。3英國(guó)合同法中(法律、法規(guī)和規(guī)章)規(guī)范性語(yǔ)言的使用法律文本的語(yǔ)料庫(kù)可以通過(guò)指示性行為來(lái)分析。很少有行為性的語(yǔ)言來(lái)顯示

49、指示性的含義。 相反，使用情態(tài)動(dòng)詞則可以作為“含蓄的行為性語(yǔ)言”。結(jié)果(見(jiàn)表3)顯示指示性行為語(yǔ)言占 主導(dǎo)地位(類別四，義務(wù)性與禁止性規(guī)則，其比例為總數(shù)的47.6%)。不明顯的策略(類別一， 命令性規(guī)則)也經(jīng)常使用(39.3%)。在類別二中，傳統(tǒng)的非直接性策略中只有許可性語(yǔ)言被使 用(13.1%)。而提問(wèn)性準(zhǔn)備條件的策略(聽(tīng)者的能力/愿意程度)則一點(diǎn)也沒(méi)有出現(xiàn)。以說(shuō)話者 為基礎(chǔ)的表達(dá)愿望與渴求的策略也沒(méi)有觀察到。在下文中，我們將討論并列舉在法規(guī)中所觀察 到的表達(dá)指示性語(yǔ)氣的詞語(yǔ)的實(shí)現(xiàn)方式。3.1指示性語(yǔ)氣從表3我們可以清楚地看到，指示性語(yǔ)氣詞是英國(guó)合同法小最經(jīng)常使用的指示性詞語(yǔ)。表示 義務(wù)性規(guī)

50、則的詞語(yǔ)占了 34.5%,表達(dá)禁止性規(guī)則的詞語(yǔ)占了 11.9%。祈使性語(yǔ)氣詞根本沒(méi)有，并 且只有幾個(gè)行為性詞語(yǔ)。3.1.1行為性詞語(yǔ)正如上文所述，開(kāi)始的立法原則是“行為性的”而法律文木木身的功能則是建議性的。除了 立法原則包括“立法”這個(gè)動(dòng)詞，行為性的動(dòng)詞repeal也是一個(gè)明確的行為性詞語(yǔ)：the infants relief act 1974 and the betting and loans (infants) act 1892 are hereby repealed (in accordanee with section i of this act) (minor's cont

51、racts act 1987)1974年的嬰兒救濟(jì)法案和1892年的賭博和借款法案從此廢止(根據(jù)本法案第一條)(1987 年未成年人合同法)在英國(guó)法規(guī)中。動(dòng)詞decide也可用作明確的行為性詞語(yǔ)，但是在現(xiàn)在的數(shù)據(jù)中，我們并沒(méi) 有看到這個(gè)詞的行為性用法。在美國(guó)法規(guī)(kurzon, 1986:24),動(dòng)詞authorize, entitle和amend也 有行為性的用法.在英國(guó)法規(guī)中，這些動(dòng)詞并沒(méi)有以上的行為性用法,但是在具體法案的條文中它 們有命令性規(guī)則的用法.在行為性的表達(dá)方式屮并未觀察到包含有命令的行為性動(dòng)詞(order, commend, request 等等).3.1.2義務(wù)性詞語(yǔ)在法律

52、文本中shall這個(gè)詞是一個(gè)典型的表達(dá)命令語(yǔ)氣的詞，占到了 21.4%. shall用來(lái)表達(dá)命令 的非語(yǔ)言表達(dá)的力量.說(shuō)話人即立法者指示聽(tīng)話人去做某事.聽(tīng)話人別無(wú)選擇只能遵守：where a person has entered into a contract after misrepresentation has been made to him by another party thereto and as a result he has suffered loss, then, if the person making the misrepresentation would be so

53、liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable not withstanding that the misrepresention was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made th

54、at the facts represented were true. (misrepresentation act 1967)合同一方基于另一方所造成的重大誤解而訂立合同，并因此而遭受損失，如果造成重大誤解對(duì)損 害結(jié)果負(fù)有責(zé)任并對(duì)其重大誤解行為有過(guò)錯(cuò)，則應(yīng)承擔(dān)責(zé)任,除非其能證明自己有合理的理由相 信在合同訂立時(shí)所有事實(shí)都顯示的是真實(shí)的.(1967年重大誤解法案)all sums paid or payable to any party in pursuance of the contract before the time when the parties were so discharge

55、d (in this act referred to as the time of discharge1), shall in the case of sums so paid, be recoverable from him as money received by him for the use of the party by whom the sums were paid, and, in the case of sums so payable, cease to be so payable:(law reform (frustrated contracts act 1943)在上述例子

56、中，情態(tài)動(dòng)詞shall分別用來(lái)表示法庭和合同一方的義務(wù).注意后面的例子中不是以 人為主語(yǔ)(all sums .shall.be recoverable from him.)情態(tài)動(dòng)詞shall還廣泛運(yùn)用于指示性詞語(yǔ)中表示規(guī)則，這樣有問(wèn)題的法律便可不用任何媒介而 得到實(shí)行：nothing in this section shall be taken to prejudice any other remedy available to the plaintiff. (minors1 contracts act 1987)本節(jié)屮的任何一條都不能用來(lái)使原告的任何救濟(jì)措施受到損害.(1987年未成年人合同

57、法案) 類似于情態(tài)動(dòng)詞的to be to在有人稱代詞時(shí)的使用：subject to this, it is for those claiming that a party does not deal as consumer to show that he does not. (unfair contract terms act 1977)在這種情況下，是那些宣稱其未受到消費(fèi)者待遇的人顯示出他們不是消費(fèi)者.(1977年不平等 合同條款法案)但是這個(gè)動(dòng)詞常與非擬人化的主語(yǔ)連用(參看shall在命令性陳述中與非人化主語(yǔ)連用)：goods are to be regarded as 'in c

58、onsumer use' when a person is using them, or has them in his possession for use, otherwise than exclusively for the person of a business; and .a contract term is to be taken .(unfair contract terms act 1977)當(dāng)有人使用商品時(shí)，它們被看作是''顧客的需要",或者作為其財(cái)產(chǎn)而使用,而不是由經(jīng)營(yíng)商品的 人所獨(dú)有合同條款將(1977年不平等合同條款法案)在法律文本外

59、常用來(lái)表達(dá)義務(wù)的情態(tài)動(dòng)詞num和have to則很少使用.事實(shí)上沒(méi)有含有must 的指示性詞語(yǔ),have to也只有在下面與”違約后果”有關(guān)的例子屮使用：where for reliance upon it a contract term has to satisfy the requirement of reasonableness, it may be found to do so . (unfair contract terms act 1977)合同條款必須滿足合理性的要求，可能會(huì)發(fā)現(xiàn)(19力年不平等合同條款法案)情態(tài)動(dòng)詞ought to和should也很少用作表示指示性語(yǔ)氣詞,這可以通過(guò)表達(dá)義務(wù)的”弱語(yǔ)氣” 來(lái)理解：in relation to a notice (not being a notice having contractual effect), the requirement of reasonableness under this act