|IATEFL ESP SIG Newsletter nº14 August 1999|
THE ANALYSIS OF A LEGAL TEXT: LLOYD’S INSTITUTE CARGO Clauses
María Ángeles Orts Llopis, University of Murcia, Spain
Legalese in context. Lloyd’s clauses as a corpus of analysis
The interest of linguists in English legal discourse is relatively recent and regretfully scarce as yet. From both Mellinkoff (1963) and Chrystal and Davy´s (1969) attempts towards systematization in the sixties, up to the modern studies carried out by Bhatia (1983, 1993) on legislative texts, by Kurzon (1984) on cohesive structures and, in Spain, by Alcaraz (1994) on the peculiarities of the English legal structure and its language, among others, the emphasis has been increasingly placed on the need to define and describe the legal discourse in its own context. Therefore, far from considering the legal text solely from its grammatical and semantic point of view, and, no doubt, influenced by the pragmatic flavour of other previous multidisciplinary analyses (vid. Danet , 1980 and O´Barr 1982 for example), the objective of these studies has taken into account the extra-linguistic purposes of the text itself.
This implication of context in the analysis of legal discourse directs the scope of attention to Common Law as the main source of law in the British legal system , a system that –contrarily to the Continental one, whereupon the law of European countries is settled- is based scarcely on statutes and mostly on the legal decisions taken by judges and courts. This renders it, on the one hand, forever flexible and changing, but also contradictory and chaotic in many cases. Therefore, legalese has recurrently been described as a complex, intricate, even bizarre discourse genre, springing as it does from the authoritative role of the institution itself, which turns judges into legislators and makes the text central for the purposes of interpretation and its subsequent application -again diverging from the Continental system where the law is to be constructed in a general sense (Riley 1991).
Due to this central role of the legal text , the aim of legislation in the Anglo-Saxon system is to make the linguistic forms in the text itself , first and foremost, explicit and precise and, secondarily, flexible and condensed. Paradoxically, the result of these efforts is a language that, once and again, juxtaposes precision and ambiguity; a vague language that masks inconsistencies in order to create the illusion of consistency; an archaic, frozen language out of reach of the layman and customer of the law, that has consequently put lawyers, judges and administrators in a position of political and social power. There is no exception to the case as regards contract, for there is not a body of rules in Mercantile Law, but a group of customary uses among traders throughout history, of age-old agreements between two or more parties which are law-binding and may be enforced by the courts.
In this article, our aim will be to illustrate the characteristics of legalese, by means of the analysis of the Institute Cargo Clauses A, a type of clauses included in many international insurance contracts. Due to the strength and importance of London in terms of trade and banking, Britain has played a major role in the development of international insurance. In fact, the Institute Cargo Clauses -introduced in the London insurance market in 1912 for the first time-, like all those that regulate cargo in marine insurance, are open clauses normally added to insurance policies or Bills of Lading .As insurance policies, they are indeed the recording of an agreement made between two contracting parties: the insured and the insurer; not really contracts, but the evidence of them. They are relevant to our study, not only because of their nature as "private legislation" (Bhatia 1993), but also because, as there are no internationally-recognised uniform conditions for insurance certificates, Lloyd´s clauses are so widespread that they represent, actually, international insurance terms. Approximately two thirds of the world use these policies solely, or together with local policies. The ICCs, therefore, are basic instruments in the international system of marine insurance, and a very genuine sample of traditional legal discourse in its written form.
All of the above make these clauses an ideal field of study for our purpose: to shed some light on the analysis and systematization of legal discourse.
The analysis of the text. Levels of analysis
At the moment there is no overall linguistic description of legalese available, as linguists have not systematically sampled a sufficient variety of its uses and identified its distinguishing characteristics. Trying to benefit from the present studies on genre and register (e.g. Bhatia 1993), we will take into account, not only the formal features of the text, but also the strategies that bind it together into a consistent body of legislation and, further, the differences and similarities that connect it to other legislative genres. We are thus, going to divide our present study into different levels:
a) Intra-discourse level
a.1.Textual level, that includes the formal study of the text and would account for lexical and syntactic features.
a.2.-Discourse level, including the strategies to achieve cohesion and coherence in the text.
b) Inter-discourse level, linking the above features in the text to the rest of legislative texts.
a) The intra-discourse level of analysis.-
a.1.-The textual level.-
As far as lexical terms are concerned, the text under analysis shows the appearance of typical features accounted for in other legislative texts, namely technical terms or terms of art, i.e., words specific to the genre, as for example salvage, unseaworthiness, inure, assured or underwriter, which are certainly unfamiliar out of this context; common terms with an uncommon meaning such as average (in the context of marine insurance meaning "partial loss") or attachment (here, the enforcement of the policy); words of Latin (operators, negligence, belligerence), French (default, damage, claim, force, commencement) and Old English (therein, hereunder, thereof) origin; unusual prepositional phrases of the kind in the event of any claim, instead of "if there is any claim" or in no case shall this insurance cover, for "this insurance will never cover" and finally, doublets, like wear and tear or cost and expense, normally partial synonyms, which are very usual in this register. These features are accompanied by other characteristics that abound in legislative genres, such as over-precision in the specification of detail (exemplified by the use of long lists of lexical words attached with or, or without any punctuating device when describing the exclusions, claims and duration of the policy), vagueness (in the use of any and expressions like or elsewhere) and formality, illustrated by the use of shall, as in who shall have the right, for example.
With regard to syntactic features, it is frequent the use of nominalization, i.e., nouns constructed from verbs usually adding -age (as in salvage, leakage, stowage or storage) or -tion ( as in allocation, distribution or termination), passives (everywhere in the text to assign obligations or impose conditions, like in the goods are to be forwarded, the insured transit is terminated and the subject matter is reasonably abandoned), conditionals (with sentences starting with if or in the event of), unusual anaphora implying the absence of pronouns to increase precision, no doubt impeding comprehension in most cases, use of unique determiners of the type such and said, parallel structures -of the type A or B, A and B, A or B or C- , as well as a high frequency of prepositional phrases in unusual position ( as for example in no case shall this insurance cover or in the multiple occurrence of if, after discharge overside from the oversea vessel at the final port of discharge(.....), the goods are to be forwarded...). To these important features, it would be relevant to add in a special position the sentence length and overall grammatical complexity of the corpus studied. Even if long sentences can be simple in structure, the text -that goes on for 800 words- shows just 28 sentences , none single except the concluding one. Of these, approximately 30% of them include as much as 7 dependent clauses. Many of the sentences are compound, but embedding is also common.
a.2.- The discourse level.
All the above morpho-syntactic features are a very interesting account but, by themselves, represent just a linguistic exercise in a void and say nothing new on the matter, unless reference is made to the influence that context bears upon them, and viceversa. Therefore, a review of the discourse characteristics of the text is called for to point out, for instance, the density and width of associations of the key concepts used: average, damage, discharge, claim, affreightment.... These terms only acquire its discourse value within a community of associated insurance values and other contractual concepts (Harris 1997). In the ICCs, as in legislation in general, language evokes its own context. But, not only conceptual difficulty is worth pointing out: the cohesive devices used show that every proposition aims to be all-inclusive. The deletion of commas in many cases, the numerical and graphetical divisions in the text, together with the general sentence complexity, are samples of a discourse that leaves nothing unsaid. What Bhatia (1987) labelled as "textual mapping" is also a phenomenon inherent to the text: constant reference is made in it, either backwards or forwards, to related, essential information found in other sections of the policy. Coherence, likewise, is achieved in the conceptual and formal obscurity, aimed at being understandable to the legal specialist , to offer clarifications about various aspects of the policy and make it unambiguous –confusing and hermetic though it may seem to the layman.
b) The inter-discourse level of analysis.
We have pointed out above –either implicitly or explicitly- that reading the law is not a linear process (Harris 1997): understanding that intertextuality is a most pervasive feature of drafting practice is equivalent to admitting that most legislation has to be understood against a background of related law, mostly common law. In this sense, the ICCs are no exception: they are to be analysed against a shared institutional culture on legal concepts, contracts and insurance practices. Similarly, like contracts, they are frozen, perpetual speech acts (Maley 1994) with an illocutionary force which holds independently from an implicit addresser ( the insurer) and an addressee (the insured), who are subject to the terms or provisos- constitutive rules- of the contract itself. The words are performative –no constitutive rules, no contract- and are arranged in an apparent regularity with invariable order. This is evident, if we recall the syntactic characteristics of the text.
Nevertheless, there are traits that make the ICCs different from any other legislative discourse. The first would be, for instance, the fact that , as far as terms are concerned, the procedural vocabulary of statutes and case reports noted by Harris (1997) -words like argument, principle, observation or position-, with no referential quality and little reality outside the text, are here non-existent.
Quite the opposite, all the terms in the policy have their meaningfulness in the world of insurance and shipping.
Moreover, there are differences concerning the formal arrangement of the policy, as compared to other types of legislation. It has its own inherent organization, with titles and numbered sections, obviously coherent with the discourse realm itself.
Some concluding words
In this article we have tried to cast a glance at the overall characteristics of the Institute Cargo Clauses as a type of legislative discourse or genre. In doing so, our objective has been to highlight the importance that the peculiarities of legalese -as the communicating tool of a very specialised community- has in the drafting of the text itself, as well as the differences that can be drawn between this type of discourse -with an international projection in large-scale business transactions today- and other kinds of written legislation.We hope that our task will pose further research questions in the neglected area of ELP (English for Legal Purposes), a field of study very much in need of linguistic enlightening.
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