An Approach to the Study of Public Law: A Pragmatic-discursive Analysis of Judicial Decisions in Spanish and English (original) (raw)
Related papers
Legal genres in English and Spanish: some attempts of analysis. Ibérica volumen 18.pp 119-130.(2009)
Understanding the differences and subtleties between the legal communication of the English-speaking world, and the Continental law countries -and, more specifically, Spain-has become a necessary practice in the global context. For the most part, it involves unravelling the differences and concomitances between the array of legal genres produced by the professionals of the specialist communities within these two traditions (i.e., Common Law and Continental Law). This paper attempts an analysis in layers -generic or pragmatic, textual or cognitive, and formal or superficial-of two types of genre within the domain of public and private law, namely delegated legislation and tenancy agreements or leases, the study of which has been seldom attempted, despite the customary presence of these instruments in the legal routine. The result of such analysis will, hopefully, cast some light on the way these communities interact within themselves and with the rest of the world, providing new clues to tackle the application of those genres and making it possible to draw new conclusions about the way in which linguistic interaction takes place in the context of these specialist communities in English and Spanish.
Legal genres in English and Spanish: some attempts of analysis
Understanding the differences and subtleties between the legal communication of the English-speaking world, and the Continental law countries-and, more specifically, Spain-has become a necessary practice in the global context. For the most part, it involves unravelling the differences and concomitances between the array of legal genres produced by the professionals of the specialist communities within these two traditions (i.e., Common Law and Continental Law). This paper attempts an analysis in layers-generic or pragmatic, textual or cognitive, and formal or superficial-of two types of genre within the domain of public and private law, namely delegated legislation and tenancy agreements or leases, the study of which has been seldom attempted, despite the customary presence of these instruments in the legal routine. The result of such analysis will, hopefully, cast some light on the way these communities interact within themselves and with the rest of the world, providing new clues to tackle the application of those genres and making it possible to draw new conclusions about the way in which linguistic interaction takes place in the context of these specialist communities in English and Spanish.
Cognition and context of legal texts: spanish and english judgments compared
Revista de Lingüística y Lenguas Aplicadas, 2013
In this study I have analysed a selection of judgments of courts of appellate jurisdiction of the Spanish and English legal systems. The aim is to trace the main discourse and rhetorical similarities and differences that may be appreciated in this textual genre in the two cultures concerned. The reasons why I have focused on this genre have to do with its recurrence and importance in the most important branches of the legal system, and also with the fact that judgments of appellate courts necessarily involve references to other previous legal documents. At the same time, the Spanish and the English legal systems stand for representative instances of two very different models-the continental model, inheritor of the Roman tradition, on the one hand, and on the other hand, the common-law system. The paper will explore the ways in which these judgments illustrate the main features of Spanish or English legal language, respectively, and will analyse how impersonal and interpersonal aspects are covered in the judgments issued in each of these legal systems.
The paper is situated against the background of a globalized world, where English as a lingua franca tends to neutralize the real character of legal texts in other languages, when transnational application and interpretation are deployed in the course of the establishment of commercial and juridical relationships. The aim of the paper is to demonstrate that cultural and epistemological variances shape legal traditions and, hence, the peculiar traits of their legal texts and their interpretive techniques. Particularly, the Spanish and English-speaking legal cultures spring from different epistemological and cultural contexts which have developed over the centuries. While the former is based upon the French rationalist tradition that supports abstract idealism, deductivism and spiritualism, the latter is modelled on Anglo-Saxon empiricism that promotes pragmatism, philosophical materialism and inductive techniques of reasoning. These differences mark the way in which legal texts are produced and applied in either system, no matter the common purpose they may have. The paper calls for a greater awareness of cross-cultural differences as a necessary tool for the comprehension of the underlying differences in these legal discourses, which may lead to a more accurate application and interpretation of their legal texts. Key words: Anglo-internationalization, legal Spanish, legal English, legal texts, legal interpretation. * Corresponding address: María Ángeles Orts, Departamento de Traducción e Interpretación, Facultad de Letras, Plaza Sto Cristo s/n, 30071 Murcia, Spain.
Spanish and Law – Interdisciplinary Insights
Comparative Legilinguistics, 2013
The book consists of articles presented at the IV CERLIS (Research Centre on Languages for Specific Purposes) International Conference at the University of Bergamo (Italy) held on 19-21 June 2009 and titled Researching Language and the Law: Intercultural Perspectives. As stated in the introduction to the book, it also includes articles of other specialists in this field. The book consists of eleven articles presenting the results of research in the field of language and law focused on Spanish, sometimes in comparison with Italian, as is the case of the articles by Carpi, Mata Pastor and Valero Gisbert. The authors frequently base their observations on the analysis of text corpora. The method employed in many articles is discourse analysis. Some authors analyse various professional genres in legal context and one article is devoted to discursive markers. Legal translation is also dealt with. One article discusses the legal language of the European Union. All articles are written in Spanish. It would therefore be useful to provide English summaries of the articles to allow non-Spanish-speaking persons to grasp the main idea of the contributions. In the introduction the editors of the volume emphasize the central role of language in the theory of law, which is due to the fact that language is at the same time the object of the study and the means of carrying it out (p. 7). They agree with Palazzo (2003, 113) that the law is language because all legal norms and resolutions need a linguistic formulation to exist. They emphasize that there are various legal languages, each one with its own characteristics (p. 8). They refer to the division made by Jerzy Wróblewski (2000, 157-158), who distinguishes three types of languages related to law: legal language (in which all laws are formulated), language of the application of law (language of the judicial practice) and the language of legal science. Further on they apply this division to classify the articles presented in the book. They also deal with the relation between linguistic and legal norms, the recipients of legal norms and the simplicity versus complexity of legal language. Referring to Prieto de Pedro (1996, 118) they remark that both citizens and jurists are the recipients of legal texts. Therefore, the language used in legal texts should meet the needs of these both types of recipients: simplicity and clarity on one hand and precision and technical explicitness on another
Unravelling the language of the law in Spanish courts
When deciding on a case, Spanish judges must construe relevant legislation with the help of a body of ambiguous and often mutually inconsistent rules. Apart from general principles (e.g. those collected in the Constitution), the most significant guideline available for interpreting statutes, subsection 3(1) of the Spanish Civil Code, stipulates that rules shall be interpreted according to "the proper meaning of words". The vagueness of this provision, based on the idea that language conforms to reality in a univocal manner, goes hand in hand with the principle of judicial independence, under which Spanish judges are free to make any decisions they think suitable. This paper describes the principles of statutory interpretation in Spain and emphasizes how the application of these rules, together with the concept of judicial independence, sometimes makes statutory interpretation and court decisions a rather unpredictable process.
A Comparative Study of Latinisms in Court Opinions in the US and Spain
In spite of the movements demanding clarity in legal texts, Latin expressions are still used in legal language, especially in legal argumentation. Opponents of an excess of linguistic reform argue that Latinisms serve a purpose, as they avoid ambiguity, and that such clear-cut terms may help towards the development of an international lingua franca for legal professionals.
Comparative Law in the decisions of the Spanish Constitutional Court
- “Comparative Law in the decisions of the Spanish Constitutional Court”, en Percorsi Costituzionali, nº 3.2017, Ed. Jovene Editore, pp. 903-918, ISSN 1974-1928., 2017
Il presente articolo affronta l’uso del diritto comparato da parte della Corte costituzionale spagnola attraverso l’analisi delle sue pronunce in cui si fa espressamente riferimento al diritto comparato o a sentenze di tribunali stranieri. Il ricorso al diritto comparato viene operato dai giudici per la risolizione di casi che si pongono in maniera simile anche in altri ordinamenti di cui spesso si applica la regola giuridica o il case law, specialmente se si tratta di un sistema giuridico prestigioso. In this paper, we mainly analyze the use of Comparative Law by Spanish Constitutional Court, carrying out a thorough and comprehensive review of those resolutions which expressly reference Comparative Law or, on occasion, resolutions of certain foreign courts related to the matter in question. Comparative Law is used by judges where the court, to be able to solve a given case, applies the regulation or case law of another country or countries, where similar cases have risen, drawing a general rule from those countries with prestigious legal systems.