LEGAL SPEECH ACTS IN A COGNITIVE LINGUISTIC PERSPECTIVE – FOCUS ON MODALITY

Th e paper involves three main fi elds of linguistic analysis: the pragmatic theory of speech acts, cognitive linguistics and legal language. Its main aim is to demonstrate the relevance of the cognitive framework to the analysis of speech acts and especially the deontic use of the modal verb shall in the legal context. Th e focus is on the use of the modal, which is mainly used to impose obligations or to confer rights. Th us, its meaning seems to be in most cases a combination of both assertive and directive illocutionary forces when approached from a pragmatic perspective, and a combination of deonticity with futurity and prediction in traditional grammar terminology. Th e discussion is illustrated with a variety of examples retrieved from a corpus of legal documents draft ed in English and translated


Introduction
The present paper comments on selected aspects of speech acts in the legal context and their theoretical linguistic account in both what can be recognized as a traditional view and a newer cognitive linguistics.The traditional approach is primarily associated with the speech act theory as introduced and developed by John L. Austin (1962), John Searle (1969) and their followers.The cognitive approach adopted for the present study refers to work of Ronald Langacker (1983Langacker ( , 1999)), Gilles Fauconnier (1985Fauconnier ( , 1999)), Mark Turner (eg.Fauconnier and Turner 1996) and Eve Sweetser (1990Sweetser ( , 1999)).It follows from the very nature of a speech act, which involves performative, operative values, that the theory places itself in the center of pragmatic analyses, and although, as it has been emphasized by Roman Kalisz (2001: 13), pragmatic theories are basically sociolinguistics, while cognitive studies are psychologistic in nature, it seems fruitful to try and integrate the two methodological perspective, which, it is believed, may result in a better description of language phenomena.It is also worth noting that there are new linguistic theories, not associated with the cognitive approach but built within the philosophy of language, which indicate that speech act theory must inherently be psychologistic (cf. Barker 2004)  2 .
In the present study the cognitive approach to legal speech acts is illustrated via the account of the deontic shall, which is recognized as one of the characteristics of legal register.Th e semantics of the deontic shall is approached in terms of a cognitive blend.

Speech act theory and linguistic pragmatics.
Despite the ubiquity of the term -pragmatics, the theoretical status and scope of linguistic pragmatics has not been sufficiently defined.Most often pragmatics is understood as a layer of linguistic analysis next to other such layers, e.g.phonetics, phonology, syntax, semantics, etc. (cf.Akmajian et al. 2001, Kalisz 2001).Pragmatics understood in this way is the study of meaning beyond semantics, i.e. the study of meaning in context.The most often quoted features which are to differentiate pragmatics from semantics include departure from truth-oriented analysis, and focus on notions such as possible worlds, speech acts, linguistic implicature, politeness, language deixis, i.e. phenomena which may not be readily accessible though reference to language as a (relatively well defined) code, but rather available via inference3 .There are also 2 In his book "Renewing Meaning: A Speech Act Th eoretic Approach" Barker (2004: 221) claims that the theory of speech acts is 'wedded to psychologism' .pragmatic researchers who claim that pragmatics is not yet another layer of linguistic analysis, but a holistic approach to research in language (e.g.Verschueren 1999). Verschuren (1999) points to the fact that all linguistic phenomena, on all traditional layers (i.e.phonetics, syntax, etc.) can be analysed 'pragmatically' , i.e. from a linguistic pragmatic perspective; another problem is whether these traditional layers are at least methodologically justifiable.It is evident that language is not simply composed of structured layers and their presence can only be accepted as useful generalization which are to facilitate research and point to the most salient aspects of a particular approach.However, it can never be justified that e.g.syntax can be sufficiently accounted for without reference to other aspects of language, most prominently meaning.On the other hand more restrictive approaches which entirely reject structuring linguistic research into the traditional layers have to cope with generality and allinclusiveness and may appear methodologically vague even though they are able to avoid many problems connected with borderline categories, and seem to be closer to people's everyday experience, where the world is seen as imperfect and saturated with 'folk' definitions.The extreme view on language as non-autonomous and semantically dynamic, and on linguistics which require immediate demythologization, can be seen in the 'sociologistic' integrational linguistics (cf.Harris 1988, Toolan 1996), a more moderate view, where language is also seen as non-autonomous, but dependent on human cognitive abilities, is the more 'psychologistic' cognitive linguistics4 .
It seems common sense solution to accept that language cannot be analysed with no reference to the context of its use.Much as it is not possible to think of language out of its social context, the speech act theory introduces a very special methodology, which embraces the eff ects of linguistic performance.Th is fi eld of study, whose origin is marked with focus on performative, operational utterances, i.e. the language in (and of) action, the language which is not just descriptive, seems to be especially relevant to the study of legal language.
guistic expressions and the implicit-explicit relation (cf.research done within the relevance-theoretic framework by Robyn Carston and Diane Blakemore, e.g.Carston 2002, Blakemore 1989), which however falls beyond the scope of the present essay.
Legal language forms a very unique sub-system of natural language, because law, unlike other fi elds, e.g.engineering, medicine, is both expressed and performed via linguistic expressions.In fact it is not possible, at least in the European tradition, to think of law which is not formulated in language.

Speech acts in theory and their methodological status
Th e multidimensionality and complexity of speech acts have already been asserted by John L. Austin, who systematically introduced the theory into the philosophy of language.Austin (1962) pointed to the fact that there is no characteristic form for a speech act, one which could be successfully formalized; he also emphasized that linguistic acts may be unsuccessful for a great number of reasons.Searle (1969) suggested constitutive and regulative rules, which were more formalized and provided a more detailed, but also methodologically generalized, description of the conditions for successful accomplishment of linguistic acts.
Th e notion of the speech act itself has undergone signifi cant evolution since the 1960s, especially with regard its recognition as a primary unit of meaning.As has been indicated above, Austin (1962) claimed that linguistic acts can be performed in a variety of ways despite indicating the most prototypical performative form in which they occur, i.e. the present simple fi rst person indicative mood with the use of an explicit performative verb preceded with the adverb hereby.Th us, even Austin asserted that there is no direct, natural correspondence between form and function, which allows us to recognize and discuss speech acts on suprasentential level.Th is understanding is in agreement with a number of newer approaches, e.g. that of illocutionary logic proposed by Vanderveken and Searle (Vanderveken 1990(Vanderveken , 1991(Vanderveken , 1994;;Searle and Vanderveken 1985) or the account of meaning suggested by Stephen Barker (2004).In both these approaches speech acts are treated as primary units of meaning although while Vanderveken and Searle recognize six main categories of speech acts, Barker is in favour of their indefi nite number, which is to refl ect the mereology found in natural world.Barker's methodology brings him closer to the cognitive approach via his focus on intention and form, at the same time reviving notions related to the well known and somewhat obsolete performative hypothesis rooted in generative grammar 5 (cf.Ross 1970, Sadock 1974).
With regard legal language, and especially the language of English normative documents, it is common to recognize speech act-oriented units of meaning at various levels of legal discourse.Th ese units are recognized at various levels of e.g. a statute, a will, a contract.Th ere is ample discussion in literature of macro-acts and micro-acts, macro-structures and microstructures, speech events and internal lower-rank acts 6 , which can be found in legal documents.It seems signifi cant that 'event' is also one of central technical terms in cognitive linguistics.
Technical methodological problems connected with speech acts and their interpretation had resulted in many academic discussions and had provoked the formulation of the so-called Cohen's problem (1964)7 , which summerises alleged methodological inconsistences of explicit performative expressions.Th e problem focuses on interpretational diffi culties in cases which involve illocutionary force encoded in a subordinate clause.Such sentences, contrary to intuitive, common sense reading, can be shown to be inherently true.For instance, in saying: (1) I herby assert that I had never intended to do wrong.it can be claimed that the sentence is true by the virtue of involving true assertion, i.e. the act of asserting, while the content encoded in the subordinate clause can be in confl ict with reality, but also outside the scope of assertion as such.
Th us, the Cohen's problem can be seen as another argument in favour of the cognitive approach, as it is evident that only through recognition of the dynamicity of language and the reality of meaning construction in the process of communication, can non-prototypical meaning be explained.Such non-prototypical reading of lexical expressions, which involves the 5 It should be noted that even disregarding methodological problems related to the performative hypothesis itself, its notion cannot be directly identifi ed with newer approaches discussed here, fi rst of all due to the fact that the levels of meaning allowed within these theories are not (at least entirely) consistent with deep structure and other generative ideas.However, the commitment that speech act involves a semantic-pragmatic value which can be associated with a variety of form brings these approaches closer to each other.
speaker's (oft en less expected) intention, can be exemplifi ed as e.g.humorous or specialized meaning.Th ese meanings are more rooted in context than in the formal aspects of the expressions, i.e. are more dependent on inference than code.
Th e cognitive approach in the analysis of speech acts can further be justifi ed by reference to other aspects of cognitive studies, most notably their concentration on radial categories.In his Harvard lectures Austin (1962) introduced the important distinction between performative and constative utterances; however, in conclusion he decided that performatives should be included in constatives.His discussion suggests that speech acts are best conceived of in terms of prototypes, which are characterized by specifi c features; however, most of the features are not necessary.Th is approach seems to follow into the tradition of Eleonor Rosch (1975), and former linguistic philosophical ideas of Wittgenstein (1953) who introduced the notion of 'family resemblance' .At present the core of these ideas can also be found in Idealized Cognitive Models (ICM) present in the cognitive theory of George Lakoff (e.g. 1987).Eventually, having allowed non-prototypical forms of speech acts, the diff erence between performative and non-performative uses of language resides in context and its intricacies where the interplay between the illocutionary force and the form being a vehicle for it takes place.Th us, the most typical speech acts, such as: (2) I hereby declare the meeting open.
(4) I declare you man and wife.are considered as speech acts, i.e. action performed by language use.Th ey are typically conventional, oft en fossilized in structure; part to a social ritual.
Speech acts necessarily emerge from social conventions and expectations common to a culture, but are rarely written down or well-defi ned.Th us, prototype-related categories provide suffi cient means for a description of this somewhat gradable arbitrariness, which holds between form and function related to illocutionary force associated with a particular act.Implicit speech acts can be conveyed via the use of forms which signifi cantly depart from explicit speech acts like the ones quoted above even within a sub-type.For instance, a directive speech act can be conveyed via an interrogative form accompanied with relevant intonation, or entirely derive its power from context, which may appear to be a violation of the lexical semantic properties of its linguistic, (non-pragmatic but) semantic form.
On the level of internal, lower-rank categories of speech acts, their classifi cation and recognition is also dependent on pragmatic notions and can only be expressed in terms of fuzzy values, typical and non-or less typical features.Quite oft en the interpretation of the act involves a degree of vagueness which might be purposeful and intended by the author.Th e vagueness may result from the pursuit of politeness, or creativity (e.g.humour, sarcasm).Even mundane expressions such as: (5) Go to the library and check under 'Polish philosophers of language' may be understood (and intended) as a directive, recommendation, advice, a warning, and in fact many other acts.
Within its rich repertoire of possibilities for expressing directives, the English legal language includes modal forms, which are highly specialised and recognised as legal context-specifi c, cf. the examples below: (6) … the authority shall seek the views of … (7) Students may enrol … (8) Th e above mentioned level of 50% may be changed by the resolution of shareholders.…(9) … any such person will be charged … (10) Every person (…) must aid and assist in making the arrest … Th e examples serve to show that illocutionary force is not necessarily bound with a performative verb and may well be conveyed without any loss in its strength via modal expressions.
Both mood and modality are language phenomena which are complex and multidimensional.Th ey involve a variety of forms and functions both intralingually and in a contrastive perspective, and are not readily formalisable in a linguistic description.In most general terms, modality is presented as a semantic-grammatical category, which conveys the speaker's perspective on the content of his or her expression (cf.Palmer 1990Palmer , 2001)).Due to its complexity and variety of form, but also focus on the Speaker's intention and semantic modulation involved, modality seems to be especially relevant as an object of cognitive analysis.Within the cognitive approach the notion of cognitive mental spaces, as introduced by Fauconnier (1985), and the related notion of cognitive blends, also appear to be relevant and provides an insightful technique for a description of modal meanings in the legal context, which is shown in further sections of the present paper.

Th e deontic shall in English legal texts
Th e verb shall is the least frequent modal in the English language.Its distribution within Longman corpus (LSWE) has been determined at 250 uses per million words, with the most frequent English modal verbwillat 3500 uses per million.It also seems insightful that the average frequency of modal verbs in English can be determined at circa 1000-1500 occurrences per million (Biber et al. 1999, p.486).It is commonly accepted that the modal verb shall is used in several main senses.Th e most frequent one is when shall is used with future reference, i.e. as a vehicle for the notion of futurity (or/and prediction) in oft en somewhat formal or even archaic sense in the fi rst person singular and plural and in opposition to will used with other grammatical persons, e.g.: (11) I shall do it later.or: (12) I shall be twenty fi ve next week.Th e example in () already possesses a deontic touch and depending on context can be read either or both as prediction and a promise.Other uses of shall involve much fossilised and idiomaticised expressions, which have been pragmaticised in that they are used with a particular well-defi ned "Shun the ambiguous shall.function, e.g. that of proposal: (13) Shall I carry it for you?(14) Shall we go out tonight?Finally, shall can be used with a directive force, which normally happens only in formal, most oft en legal, context.
(15) Th e contract shall be deemed null and void should any of the aforesaid clauses not be met.
Data on etymology informs that the deontic meaning of shall was prior to its 'futurity'-oriented reading.However, although the aspect of duty and obligation is historically stronger, the deontic use has been now restricted to the specialised register of the language of the law.Within the law thus deonticity of shall is widely recognised and typical, while outside the domain it is seen as rare and peripheral.As a result shall, especially in the legal context, can appear as ambiguous or vague.Used under correct, felicitous circumstances, it can result in the introduction of legal consequences in extralinguistic reality.At the same time it can be perceived as descriptive of the future, the future which is both expected and 'required' .Th is aspect reveals what can be recognised as non-temporal or rather atemporal nature of deonticity in general and is refl ective of the complexity of the relation between mood, modality and tense.Even within the English legal language researchers and practitioners do not always agree on the standard readings of shall.Expert opinions range from those in favour of the deontic reading towards those which suggest that the use should be banned altogether, cf. the quotation below cited as ( 16) and ( 17), which illustrate contrary views on the usefulness of shall in the legal context: (16) "the use of 'shall' indicates that the legal subject is under obligation to act in accordance with the terms of the provision (...) it does not indicate something in relation to the future" (Robinson 1973: 39) (17) Th e word is used vaguely in fi ve distinct ways, and it requires interpretation.(…) It is a "dead" word never heard in everyday conversation.(…) [Y]our reader encounters it only in contracts, rules, regulations, and so on.(…) Shall has been interpreted in various ways by various judges; some say it means "must, " but others insist it's just a recommendation, and means "should." Never suggest legal obligation.State it." (Lauchman 2005: 47) Th e opinion cited as example ( 17) places itself in the mainstream of the so-called Plain Language Movement, whose main objective is to make legal language more comprehensible to lay people.Th e movement, which originated in the United States with the suggestion that jury instructions should be rewritten so people not trained in the law could understand them better, has gained many supporters over the world and has spread onto many other also non-English language-oriented legal cultures.However, voices against the 'legal' use of shall have also come from professional linguists, cf.Trosborg 1991Trosborg , 1994.
Th e complexity and of the deontic shall and its semantic nature can also be seen in contrastive studies and in translation.For instance in Polish, deonticity can be both rendered via the use of the present tense and morphologically marker future, cf.examples below cited as Table 1: Th e data shown in Table 1 above seems to reinforce the belief that expressions with shall, as in fact other modal expressions, are typically atemporal in nature.Th is atemporality, where especially the future and the present are merged into a unit, is clearly visible in contrastive studies.In Polish deonticity is rendered both via the use of the future tense and the present.Not always the present and the future forms are felt to be entirely equivalent, however, in most cases it can be said that the present 'includes' the future or extends into it due to the deonticity encoded in the expression.
Th e use of shall in the legal context suggests that the expressions are primarily performative in nature; they are to be operative in the law and to introduce extralinguistic results.Some of these results are immediate, others can be 'planned' , introduced at the time indicated, or just potential; however, in all cases the law itself becomes a binding description of reality.Th us, it may seem that shall, at least in the legal context, should not be associated with the notion of futurity, but only that of deonticity.However, disregarding the future reading of shall, even as used in English legal documents, evidently hurts intuitions of language users, who normally, even if trained in the law, perceive this use as a mixture of futurum and deonticity or just a (present) description of the desired (future) state of aff airs.14.No person shall act as an election offi cer knowing that they do not meet the requirements for an election offi cer set out in this section.
15.No one shall derive improper fi nancial or other gain from an activity related to an intercountry adoption.
In summary, the use of shall in the legal context can be accounted for in a number of ways.One solution is to accept that the verb is used in legal texts in two diff erent ways, either (1) as a vehicle for deonticity or (2) as a grammaticalised form to refer to the future.Th is approach fi nds it diffi cult to explain the uses which appear as vague between the two readings.On the other hand accepting that shall is just context-sensitive and its reading can only be revealed in a particular context does not seem theoretically fruitful as it is not able to solve theoretical problems and systematically account for diff erences sound for language users.Th ese pragmatic in nature approaches further introduce problems related to the accessibility of context, its being given or chosen, and postulate subjectivity in language reception.It can also be suggested that the contemporary reading of shall illustrates the fact that the verb is being aff ected by the on-going or heterogenoius process of grammaticalisation, i.e. a transition from being a lexical category towards becoming a grammatical one.Within this approach, it may be argued that in selected contexts shall may behave as a modal verb, which still possesses its lexical semantic power, while in others it may behave as a purely grammatical (and grammaticalised) category, whose function is similar to that of infl ectional morphemes in other languages, e.g.Polish.Th is approach must face the problem that the deontic reading of shall is historically prior to its other readings, thus, it could be seen as grammaticalisation which works semantically backwards, towards less frequent meaning which in the past had been central, while in grammaticalisation etymologically original meaning should be the basis and not the result of the process.However, the 'future' reading of shall is nowadays more transparent to most language users that its deontic meaning, especially among people who are not within the legal profession.Th us, the grammaticalisation hypothesis can be supported by accepting that deonticity of shall in the legal context is a product of grammaticalisation of a particular contextual aspect, resulting in its fossilization and a high level of conventionality.It also points to the fact that legal language as a sub-domain of natural language is hermetic and not easily accessible to lay persons.
It seems that the best description of the use of shall in the legal context can be achieved within the cognitive approach by reference to the concept of the conceptual blend (cf.Fauconnier and Turner 1996), which coordinates at least two mental spaces.A cognitive blend is a complex structure composed of elements available in context and integrated in a suffi cient degree to be perceived as a coherent conceptual/mental unit.Th e theory claims that cognitive blends are created within a discourse frame.Th us, this method of description allows to account for the functional, legal use of shall with relation to two basic performative categories, i.e. the speech acts in the form of a directive and of an assertion.Th e understanding of a speech act as a psychologically motivated category (as suggested by Barker 2004), which is a function of a linguistically coded intentional state of a language user, seems to reinforce the validity of this approach.Both Barker's approach and cognitive linguistics are psychologistic in nature and recognize the compositionality of intentional states and linguistic expressions.Both theses approaches also accept that intentional states are prior to language and accept that primary, 'simple' intentional states may motivate much more complex linguistic expressions, expressions which are complex in their logical and grammatical form.It results from the approach that language is a morphological-syntactic system, which possesses complex speech act characteristics, a system which integrates form and function.In conclusion it is theoretically sound and in agreement with language users' intuitions to indicate a cognitive blend which exemplifi es a unit Legal discourse composed of elements of assertive and directive speech acts.From another perspective this blend may be viewed as a blend of the notion of futurum and deonticity, because both these notions may be perceived as dynamic and against the background of ongoing processes of grammaticalisation, where semantic spaces merge one with another.Th e concept of mental spaces has already been applied to the analysis of modal meanings by Eve Sweetser (1990), who, however, indicated just three basic aspects of modal vague meanings which were to correspond to three basic mental spaces, i.e. content, epistemic meaning, and speech act meaning (cf.Sweetser 1990, p.74).Th e notion of the blend makes it possible to explain the diff erences in context accessibility and as a result recognition (or the lack of it) of the deontic function of shall, which for some users is evident and for others instantiates a structure which requires complex processing.Such perceptual diff erences result from diff erences in the ability to recognize a relevant context, herelegal specialized sub-domain.Below a tentative schematic representation of the use of the legal shall as a cognitive blend has been presented8 .

Conclusions
Th e cognitive linguistic description of the legal shall presented above is tentative and by no means fi nal or exhaustive.However, even on this limited level it is evident that it is able to embrace many salient aspects of the semantics of both the modal shall and modal verbs as well as modality in general.Due to its focus on the dynamicity of meaning, it attracts attention to the fact that categorisation in language naturally cannot be discussed in terms of clear-cut domains.All categories necessarily possess more typical members and members which pose problems in classifi cation; acknowledging the fact allows for a description of language which is non-contradictory and adequate.Th e cognitive account of linguistic phenomena are also coherent and able to present phenomena which are particularly susceptible to context variation, including those related to the legal domain.
Th e deontic-futurum blend, which can be exemplifi ed by the deontic meaning of shall in the legal context, can be successfully coordinated with the pragmatic theory of speech acts, within which it can be seen as a blend of an assertion and a directive.In most general terms it is a description of a desired state of aff airs, which via its 'ritualised' form and performative, operative, illocutionary force is to be introduced into extralinguistic reality, where things are to be done with words.

Figure 1 :
Figure1: Th e image of the deontic shall as a cognitive blend.

Table 1 :
Samples of shall in the legal context with relevant Polish equivalents