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ABSTRACT
Scientific study of language and its implication in analysis of court judgement is yet to be given as much scholarly attention as other legal genres. Most of the work that has been done so far on Appellate Court Judgements (ApCJs) focus more on stylistic analysis and do not investigate the import of meta-linguistic meanings. Correspondingly, most studies on power relations in the courtroom dealt with the asymmetrical relations of power. As a result, the language of the courtroom has been rated explicit and asymmetric. Therefore, this study investigated the linguistic and the meta-linguistic features in terms of symmetrical and asymmetrical relations of power in selected Nigerian ApCJs.
The study adopted the propositional and meta-propositional frameworks to analyse six APCJs from the Nigerian Weekly Law Reports (1999-2004).Purposive random sampling technique was employed in selecting two leading Judgements from each of the stratified groupings of the three types of appellate judgements: murder cases, human rights abuses and property crimes. Out of the 1,129 sentences that form the data, 110
sentences selected through nth sampling technique of one of every sentence form the sample size. Using the Systemic Functional Grammar Theory, the tools of analysis
employed were Pragmatic markers (pms), politeness theory, speech act theory and componential analysis, to discover their pragmatic marker types, the face types, lexical components, speech act types and their various implications.
These analyses revealed that although ApCJs were linguistic, they were replete with meta-
linguistic contents.Utterances in the texts comprised two distinct parts: propositional contents (the basic messages); and meta-propositional contents (the linguistically encoded clues exploited by the judges in signalling their potential communicative intentions).The meta-propositional contents were signalled by four variants of pragmatic markers: basic, commentary, discourse, and parallel markers. The linguistic politeness findings revealed that ApCJ asymmetrically relate powers in disallowed appeals but symmetrically relate power in allowed appeals. The Componential analysis revealed that appellate judges achieved
psychological plausibility of their stances through precise diction. The direct speech acts types were retrodictives, assertives, informatives; direct requestives, performatives assertives and verdictives. These showed that the language of ApCJs functions directly for: reporting, asserting, informing, requesting and pronouncing verdicts, while it indirectly informs, asserts, concedes, directs, requests, dissents and ultimately judges. Thus, ApCJs themselves depend extensively on re-contextualized linguistic elements taken primarily from different texts, especially from the lower court judgements.
In conclusion, the language of ApCJs was not only propositional, meta-propositional, symmetrical but also asymmetrical (four diagonal intricacies that facilitate logical appellate adjudication and verdicts).Applied linguists should critically investigate other meta-linguistic meanings in the legalese.
Keywords: Linguistics, Propositional, Meta-propositional, Appellate Court Judgements. Word Count: 422.
CHAPTER ONE
INTRODUCTION
1.1Background to the Study
Language as a means of communication has linguistic features that are peculiar to different contexts of use. The study of these unique linguistic features is important for defining and creating the different genres of linguistic texts. Hence, it is reasonable to talk of variations of language such as the language of law, or legal document, the language of religion, the language of institutionalized aggression or the military, the language of agriculture etcetera. Linguists have deemed it fit to study different genres as well as understand how language functions in those fields in order to either standardize specific linguistic symbolizations or perform certain appropriate functions that are pertinent to the existence, definition and survival of the institutions and their members (Mey, 2001).
The profound linguistic nature of the legal institution has propelled several studies on English for Specific Purposes (ESP) in the 1960’s and inspired many linguists to study language use in specific contexts (Chenge 2008) including the legal context. Accordingly, there are diverse studies on courtroom language. Nonetheless, the Nigerian Appellate court judgement is yet to be subjected to adequate meta-linguistic scrutiny-especially for its pragmatic traits. Therefore, the specific concern of this work is on the language of appellate court judgement with a focus on investigating how appellate judges exploit language in performing the legal functions of overruling, modifying or accepting the judgements of lower courts.
One major problem with the Appellate court judgement (ApCJ) is that every meaning must be linguistic including the writer’s intention which is meta-linguistic. Furthermore, (ApCJ) is expected to clearly and objectively convey decisions without any sense of partiality. Nonetheless, the appellate judge is still charged with the responsibility of convincing other court participants of the veracity and correctness of his/her stance(s). The question is: How neutral/unbiased is the judge’s language. Recourse to the linguistic analysis of the appellate court judgement would suffice.
Linguistics is the scientific study of language. It is about understanding the system of language. The aims of linguistic science are both theoretical and practical. McMenanim (2002:36) posits that linguistics is theoretical because linguists discover the underlying rules and patterns of language and then describe them in the languages of the world. This means linguists look for language characteristics that are present in all languages (universals), as well as features found only in certain language families or individual languages. The description of the universal and distinctive features of the languages of the world constitutes the focus of universal grammarians.
Whereas the goals of linguistics are also practical since they attempt to use linguistic knowledge for the purpose of improving speakers and languages. For instance, linguistic knowledge can be used for language teaching, language acquisition skills, forensic applications, etcetera. From the foregoing, linguistics is descriptive not prescriptive. This means its goal is to understand and describe language and languages, not prescribe rules for correct and appropriate usage. It is on this descriptive premise that linguists are poised to apply linguistic theories to language use in different fields like Agriculture, Education, Medicine, and Law as in the instance of this present study where language is applied to the language of law.
The Application of linguistic methods to different professional fields is of interest to
linguists for several reasons. Every field of profession has its linguistic variations. These variations are the bricks for achieving the style and purpose of a text. In the same vein, linguistic variations are vital tools for contextualising a text- since every text-type exists with an intended purpose. Consequently, the purpose of a text, determines the linguistic variations and contextual features of that text.
The study of language variations has fascinated many linguists to focus their attention on investigating language features evident in different specialised fields of enquiry. One of such areas where the application of linguistics is gaining topical attention is Forensic Linguistics (FL). FL is an aspect of linguistics that studies language and law or involves the study of language in the context of the law. On the other hand, the field of language and law is a subfield of Applied Linguistics (APL) ‘which involves the application of linguistic theories and analyses to language issues in the real world’ (Jordan 2002:7). Thus, APL involves a wide range of subjects from language acquisition, language learning to language and gender issues and from orthographic questions, translation and literacy to language and law. However, the concern of this present study is on language and law. Precisely, the study investigates the nature and function of language in selected Nigerian Appellate Courts Judgements.
1.2 Statement of the Problem
The critical role of language in the courtroom has attracted and propelled many linguists to investigate the nature of legalese in general. Some of the relevant studies on the nature of the language of law include discourse of lawyers and clients (Maley et al, 1995; Haley, 1997). Discourse of trial Lawyers (Stygall, 1994), Discourse of courtroom questions (Hale, 1999; Berk-Seligson, 1999; Ridgney, 1999; Farinde, 2008), Language of Jury instructions (Levi, 1993; Jackson, 1995; Tiersma 1995; Dumas, 2000) and others. Nonetheless the foci of most of these literatures have been on asymmetrical relation of power in the language of courtroom discourse and stylistic study of language, which is, identifying language habits of speakers with the purpose of identifying those features which are restricted to certain individual’s use of language in certain kinds of social contexts. These imply that analysis of meta-propositional meanings (or the unsaid) in court judgements and symmetrical relations of power in general is still lean
Therefore, this present study investigates speaker meaning as encoded linguistically and asymmetrical relations of power in the courtroom. This is pertinent because constructing meanings in Appellate court judgements is not a simple task. Explaining this, Crystal and Davy (1969:192)posit that ‘whoever composes a legal document must take the greatest pains to ensure it ‘says’ (mean) exactly what he wants it to say (mean)and at the same time give no room for misinterpretation’. They further elucidate on the assertion further:
The word ‘say’ is important in this context, because when a document is under scrutiny in a court of law, and if a composer happens to have used language, attention will be paid only to what, as a piece of natural language, it(the text) appears actually to declare; any intentions of the composer which fails to emerge clearly are not usually considered in arriving at what the document means and if the composer happens to have used language which can be taken to mean something other than he intended, he has failed in his job.
Going by Crystal and Davy’s explanation above, language use in legal discourse is structured not only to express the literal meanings but also intentional meanings which both must be absolutely linguistic/propositional. Clarity from the foregoing means the content of the text should denote exactly what the writer intends. By extension, meanings in appellate court judgements must be derivable from the linguistic contents and not other resources. The question is: what meta-linguistic clues are derivable from the selected appellate court judgment?
Furthermore, appellate court judgement being a non-fictional text is expected to be objective and unbiased. Therefore, appellate justices in their choice of language try to be neutral but in the actual sense, are there no linguistic evidences of bias?
In summary, this current study fills these gaps- firstly; beyond the linguistic meanings, it investigates the meta-linguistic meanings in the texts with a view to bringing to the fore the linguistically encoded clues which the appellate judges exploit in signalling their potential communicative intentions. Secondly, in order to authenticate that appellate judges not only use language to dominate laymen in court but also their fellow judges, the study investigates the symmetrical relations of power in the language of Nigerian appellate court judgements.
1.3. Objective of the Study
The general aim of this study is to describe the language of the Nigerian Appellate Court Judgements and find out how they are linguistically constructed in order to either uphold or reject the lower court judgement.
The specific objectives are to:
(1a) identify the variants of and frequency distribution of pragmatic markers exploited by
the appellate judges in the judgements;
(1b) identify the most preponderant pragmatic markers and discuss their functions
as exploited by the appellate judges in signalling their intentions;
(2) discover the extent to which the appellate judges, in up-holding or rejecting the lower
court judgement, threaten or save the faces of the trial court judges.
(3) determine the functions of the face saving acts and the face threatening acts exploited by
the justices and other courtroom participants in the selected Appellate judgements,
(4) ascertain the categories of lexical items employed in stance-taking and their significance.
(5) investigate the kinds of speech acts exploited in the construction of the Appellate court
judgements and state the most preponderant speech acts and
(6) identify the functions of the identified speech acts.
1.4. Research Questions
Based on the objectives, the research questions for this study are:
(1a) What are the variants of and the frequency distributions of the pragmatic markers
exploited by the appellate judges in the Appellate judgements?
(1b) Which pragmatic maker is the most preponderant and what are the functions of the
identified pragmatic markers exploited by the appellate judges in signalling their
intentions?
(2) In order to uphold or reject the lower court judgement, to what extent do the appellate
judges threaten or save faces in the selected Appellate court judgement?
(3) How significant are the FSAs and the FTAs in the construction of the selected Appellate
judgements?
(4) What categories of lexical items are employed in stance-taking and of what
significance are they?
(5)(a) What kinds of speech acts are exploited in the construction of the Appellate court
judgements?
(b)What is the frequency of distribution of the speech acts types identified in the
judgements and which speech acts type is the most preponderant?
(6) What are the imports of the identified speech acts in the Appellate court
judgement?
1.5 Significance of the Study
This study is significant first and foremost as it stands to expand the frontiers of research in language and law, most especially in Nigeria and Africa at large. Research on language and law still deserves more attention in Nigeria as a developing nation and in Africa at large.
Secondly, the findings of this study would be of significant benefits to legal practitioners and laymen who hardly can read court judgements and make sense of them. Legal professionals would observe how linguists can construe/ interpret meanings in judicial documents. Judges will further learn the science of words and be more sensitive in the use of it.
Since every genre has its own typical information structure and text-forming resources, this study will objectively present the information structure, the linguistic or text-forming resources that characterise the Nigerian appellate court judgements. It reveals how the linguistic and meta-linguistic elements are structured to perform their communicative functions. On the whole, it will reveal the role of language in the complex task of writing a court judgement. The study objectively explains what judges do with words and the imports of their choice of words on case outcomes. It is important to investigate how language is used for building court judgements and how it provides justification for the same in court judgements, because it is possible for a judge to contradict against his/ her conclusion. As found in the instance of Dixon diaries (cited in Blackshield 2012: 7) who on completing his written judgement, found that he had reached the opposite conclusion to that which he expected to reach.
Significantly, this research brings to fore the need for legal practitioners to employ the services of linguists in the scrutiny of their judgements and legal documents in order to eliminate conflicts and misunderstandings. The study also has an underlying pedagogical motivation in that the results would be of great value and interest to the Nigerian students of English for Legal Purposes (ELP), the lawyers practising foreign legal affairs and Forensic Linguistics students. Lastly, this research would establish the relevance of linguistic analysis to legal discourse in general and court judgements in particular. Consequently, this will encourage other researchers to carry out further research as to how language is used to mean in the legal institution.
1.6 Scope of the Study
For the purpose of this study, only written appellate court judgements, rather than transcribed judgements or other types of judgements are examined. The analysis carried out in this study is a linguistic analysis and not a legal or philosophical one. Also, the study analyses only the leading judgements of the selected judgements.
1.7 Theoretical Framework
The study adopts the propositional and meta-propositional frameworks. In accordance, the study is hinged on the fact that language conveys explicit/propositional meanings and implicit or meta-propositional meanings. On the bases of the frameworks the following theories were adopted: the Speech acts theory, Politeness theory and componential analysis and Pragmatic markers.
From the theories four claims underpin this study. The first is that every text is constructed with words (comprising atoms and components).The second claim is that Appellate judgements have speech actions (speech acts) which have direct/propositional content (meanings derivable from the literal words used in the text) and indirect/meta-propositional meanings (that is the intended meaning of the speaker).The third assumption is that the speaker’s intention can be decoded through pragmatic markers and componential meanings of the lexical markers used in the propositional content of the text. Four, the study assumes that the illocutionary force of a sentence has the capacity to either save or threaten the hearer’s face.
J.L Austin’s Speech acts theory (1962) states that ‘utterances are acts’. Also, Adegbija (1989) making reference to Searle, Kiefer and Bierwisch, claims that the ‘speech acts theory starts with the assumption that a minimal unit of human communication is not a sentence or another expression, but rather the performance of certain kinds of acts such as making statements, asking, giving orders, describing, explaining, apologising, congratulating, passing a verdict, etc.’.
There are divergent views as to the various types of speech acts types that exist. However, there are three major classifications. They are: locutionary, illocutionary and perlocutionary act. A locutionary act is an act of saying or producing basic linguistic meanings. Hence, expressions such as ‘It is my breakthrough season.’ Joke dealt with me.’ ‘James is a boy.’ are locutionary acts since they are grammatically correct and have specific linguistic meaning.
On the other hand, an illocutionary act is the intended meaning of an utterance. It is the actual action performed by saying something. Explaining this, Yule (2006), submits that it is an act performed through the communicative force of an utterance. For instance, the expression ‘I am hungry’ is an act of saying. However, the illocutionary act could be to request for food from the addressee. In essence, locutionary acts are simply semantically and grammatically correct utterances which mean exactly what the semantics and grammar of the words therein portend, while illocutionary acts are meanings beyond the grammatical and semantic surfaces. Rather, they are intended meaning of the speaker or what the speaker intends to achieve with his utterance. The intention of speaker a judge who utters a direct retrodictive act like ‘the appellant hit the deceased with a shovel on the head could be to: clarify, point out, allege, or to establish a rationale for reaching a decision, etcetera.
The perlocutionary act, which is the third layer of meaning, it is the effect that is produced by the utterance or the locution on the hearer. Some typical examples of perlocutionary acts are these: inspiring, persuading, convincing, intimidating, deciding, condemning, sentencing etc. Thus, when a judge makes an assertive utterance like: ‘the trial judge carefully considered the evidences before him’ his intention might be to convince the hearers or to commend the trial judge in question, or otherwise. Whatever effect the utterance has on the hearer is the perlocutionary effect. This tool is not employed in the analysis of the data of this study because as far as the data of this study is concerned it is impossible to assess or measure the effect of court participant utterance on one another.
On the whole, the speech acts theory denotes that words are not just meant for ‘saying’ but for performing certain ‘social acts. Precisely, Allan’s Model has been selected for the analysis of the study data .The application of speech acts theory is quite appropriate as it will enable the researcher to account for the various messages and impressions the speakers in the appellate court judgements have conveyed.
Politeness theory was also applied for the analysis of the selected Appellate judgements. The word ‘politeness’ simply means ‘courtesy’ or ‘respect’. Brown and Levinson (1983), defining Politeness theory posits that for communication to be successful and not breakdown the interlocutors must show awareness of one-another’s public self-image/face. In other words, a speaker must recognise the personality of his listener and show respect for it through his choice of language. If the speaker fails in doing this, the listener might be unwilling to listen and their might be breakdown in communication. Brown and Levinson’s submission implies that speaker must show respect to other court participants’ faces, but to what extent do judges do this when they build judgements? This is one of the questions this study seeks to answer by applying the politeness theory to the study data.
In summary, the theoretical framework is deemed appropriate as the Speech acts theory will account for what appellate courtroom participants most especially the Appellate judges do with language. Also, the theory will enable the researcher to establish how direct and indirect propositions are exploited by the participants in building reasonable and convincing Appellate judgements. The politeness theory on the other hand would enable the researcher to account for the role of face saving and face threatening acts in the Appellate judgements.
1.8. Justification
1.8.1 Justification of the Study
The fact that several studies exist on language and law does not erode the point that only few studies have focused on the language of court judgement. The few studies in this field have mostly studied foreign court judgements and not the Nigerian courts’ judgements. Also, the existing studies have applied only semiotic and discourse theories. Consequently, they have not fully explored the application of semantic and pragmatic theories.
Investigation of how language combines and expresses meaning in court judgement is important because as common and effortlessly as it is to express one’s thought through the medium of talking or writing, using language for a reasonable communication is a complex enterprise. This implies that much goes into using a language besides knowing it and being able to produce and recognise sentences in it. These assertions are true, most importantly because the human language is a functional system. It varies with time, purpose, speaker’s intention etcetera. Therefore, this study investigates specifically how language is used for building up appellate court judgements in Nigeria.
1.8.2 Justification of Choice of Data
The choice of the study data was informed by the need to investigate how appellate judgements are built up linguistically against other types of judgements. Since appellate court judgements are superior to lower court judgements, this study purposely chose to examine the nature of language use and how language is organised to justify or overrule the lower court’s judgement. The choice of study data was informed by the need to prove that the language performs diverse functions in appellate court judgements. Therefore, six Nigerian appellate courts judgements randomly selected from the Nigerian Weekly Law Reports constitute the data for the study.
1.8.3 Justification of the Appropriateness of the Theories
The selected theories for this study are from two branches of linguistics: Pragmatics and Semantics. The pragmatic theories are Speech acts Theory, Leech’s Politeness Theory and Frasers’s Pragmatic Theory while the Semantic theory is componential analysis.
Pragmatic marker theory was employed to identify critical linguistic elements exploited by appellate judges in signalling their intentions. The speech acts theory was selected to identify the kinds of speech actions in the appellate judgements. Componential analysis was employed to expose the Psychological plausibility of the appellate judges’ choice of words. Lastly, Politeness Theory was employed to investigate the degree of linguistic politeness in the genre.
1.9. Operational Definition of Terms
- i) Court: the place where legal trials take place.
- ii) Appeal: This is the process whereby parties seek to rectify, review or reverse any error or omission, whether of facts or law or any injustice made by a lower court at the higher court(Afolayan 2010:273).
iii) Court of Appeal: It is the second highest court in Nigeria and is a court of law that people can go to in order to try to change decisions that have been made by a lower court.
(iv) Appellate court: Any court of law that sits on appeal.
- v) Legalese: It generally means that incomprehensible verbiage found in legal documents as well as arcane jargon used among attorneys. However, in this study, the term is used as a synonym of legal language
- vi) Judgement: The judgement of the court is the final decision of a court.
vii) Ratio dicidendi (singular)/Rationes dicendendi (Plural): It is a Latin phrase which means ‘the reason(s) or rationale for the decisions made in a judgement given).
viii) Obiter dictum: [a saying by the way] an observation of a judge on a legal question
suggested by the case before him.