Keywords
language of the law
language of legislation
comparative analysis of legal languages
legal clauses
legal norms
legal rules
linguistic phenomena of the law
How to Cite
Abstract
The article is meant to serve both theory and practice in the cross-roads area where legal
theory meets linguistic philosophy. The legal perspective is represented by the famous command
theory of John Austin, who is often regarded as the founding father of anglo-american branch of
legal positivism. The linguistic perspective is represented by the speech acts theory elaborated by
John Langshaw Austin.
It is argued that the command theory is only of marginal use for any process of crosscultural
legal communication. The reason behind this argument is that the command theory is
grossly reductionist in its nature (―colonel – lieutenant‖) and cannot therefore embrace a trilateral
reality of cross-cultural legal communication (speech originator – interpreter – audience). But the
imperative theory may be useful if applied to ―misfires‖ of the whole process of legal oral
translation. By transforming the said trilateral reality to any dichotomy in the sense of the command
theory, i.e. by bracketing together any two of the said agents and by insulating the third one- we
inevitably arrive at some sort of ―misfire‖ or even collapse of the whole procedure. Further the
common view is challenged that the only source of such ―misfires‖ lies in poor quality of
interpretation. It is argued that both the speech originator and even somehow inadequate audience
may share the final failure.
The eventual outcome of the article may be described as an attempted synthesis of the
speech acts theory of John Langshaw Austin and sociology of law as elaborated by German
professor Werner Krawietz. The interdisciplinary approach to discussed ―misfires‖ of cross-cultural
legal communication resulted in formulating a series of bilateral rules, which are obligatory both for the speech originator and the interpreter if the most unacceptable ―misfires‖ of legal oraltranslation are to be avoided.
References
Austin, John, 1995. The Province of Jurisprudence Determined. W. Rumble (ed.), Cambridge: Cambridge University Press (first published in 1832).
Austin, J.L. 1962. How To Do Things With Words. Oxford: Clarendon Press.
Bentham, Jeremy (1789/1996), An Introduction to the Principles of Morals and Legislation. J. H. Burns & H.L.A. Hart, eds., Oxford: Oxford University Press (first published in 1789).
Bix, Brian H. 2000. On the Dividing Line Between Natural Law Theory and Legal Positivism. Notre Dame Law Review 75: 1613–1624.
Cotterell, R. 2003. The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy. 2nd ed. London: LexisNexis.
Krawietz, W., 1984. Recht als Regelsystem. Wiesbaden: Franz Steiner Verlag.
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