Legal Discourses

by Marcus Galdia (Author)
©2015 Monographs 449 Pages


The book approaches law from the legal-linguistic perspective. Its aim is to clarify the processes in which the meaning of law emerges in legal discourses. In order to enable the understanding of law as a discursive practice, professional and non-professional discourses are analyzed. With this aim in mind, the author focuses on the epistemological consequences of the discursiveness of law. Other relevant legal-linguistic operations such as legal interpretation or legal translation are scrutinized in terms of their theoretical prerequisites and their practical consequences. Their analysis also shows the potential and the limits of law as a social and as a linguistic phenomenon that is determined by its discursiveness. Finally, the book demonstrates how the discursiveness as the distinctive feature of law establishes the connection between the science of law and other social sciences.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Contents in Brief
  • Detailed Contents
  • Preface
  • Acknowledgments
  • Introductory remarks
  • Part 1: Legal-Linguistic Points of Departure
  • Part 2: Legal Epistemology and its Consequences
  • Part 3: Discursiveness of Law
  • Part 4: Semiotics of Legal Discourse
  • Part 5: Legal Argumentation between Discursiveness and Rationality
  • Part 6: Linguistic Turn in Law
  • Part 7: Legal Narrativity or Law as Literature
  • Part 8: Ubiquitous Legal Argumentation
  • Part 9: Discursive Perspectives and New Horizons
  • Bibliography
  • Index of names
  • Index of matters

Detailed Contents



Introductory remarks

Legal-linguistic perspective

Discursiveness of law

Structure of Legal Discourses

Part 1:  Legal-Linguistic Points of Departure

1.1 Some fundamental questions

1.2 Meaning and discourses in law

1.3 Linguistic turn in law

1.4 Discursive choices and particularity of language use in law

1.5 Legal discourse without limits?

1.6 Non-committal use of textual samples

1.7 Legal-linguistic method

Part 2:  Legal Epistemology and its Consequences

2.1 Legal ontology and legal epistemology

2.2 How to approach law?

2.2.1 Search for law

2.2.2 Encounters with law

2.2.3 Law apprehended

2.3 Static reason or law in action?

2.3.1 Existence in terms of law

2.3.2 Does the nature of things shape the law?

2.3.3 How does law operate?

2.3.4 Turning the concept of law upside down

2.4 What is the domain of Law and Language?

2.5 Consequences of the epistemological interest in law

2.6 Legal archaeology

Part 3:  Discursiveness of Law

3.1 Speaking about law

3.1.1 Foucault as pilot

3.1.2 Foucault and legal science

3.1.3 Foucault’s approach to law and power

3.2 Discourse and discursiveness

3.2.1 Discursive contexts

3.2.2 Discursiveness of law

3.2.3 Monologues as discursive prerequisites

3.2.4 Other discursive prerequisites

3.3 Discursiveness and discourse analysis

3.3.1 ‘Différance’ in law

3.3.2 Discursive law in discursive societies

3.3.3 Ideally discursive societies

3.3.4 Non-discursive areas of social action

3.4 Discursiveness and creativity

3.4.1 Diversity of legal discourses

3.4.2 Divide between professional and non-professional discourses

3.4.3 Academic discourse

3.4.4 Didactic discourse

3.4.5 Relative independence of non-professional discourse

3.5 Discursive contents

3.6 Hostile winds cannot prevent discourses

3.6.1 Largely non-discursive valuable approaches to law

3.6.2 Discursiveness and meaning determination

3.6.3 Purists’ and essentialists’ views upon legal language

3.6.4 Essentialism and legal discourses

3.6.5 Reification of legal language

3.6.6 Strictly non-discursive approaches to law

3.7 Discourses and theories

3.7.1 Legal discursiveness ‘more geometrico’

3.7.2 Legal logic

3.7.3 Discourses about matter

3.7.4 Revolutions and legal discourses

3.8 Can there be a legal ethics?

3.8.1 Ethics of discourse

3.8.2 Avoiding participation in legal discourses

3.9 Provisional appraisal of ‘results’

Part 4:  Semiotics of Legal Discourse

4.1 Legal semiotics and legal discourse

4.1.1 Semiotics of discourse

4.1.2 Semiotic complexity of discourse

4.1.3 Discourse unites language and power

4.2 Non-verbal elements of legal discourses

4.2.1 Artifacts of law

4.3 Legal interpretation: Pre-interpretive remarks

4.3.1 Martian interpretation

4.3.2 Finalist interpretation

4.3.3 Oblivious interpretation

4.3.4 Revelation of law as interpretive device

4.3.5 Constructive interpretation

4.3.6 Originalism as interpretive device

4.3.7 Law and Economics as interpretive paradigm

4.3.8 Establishing interpretive rules

4.3.9 Soft interpretive guidelines

4.3.10 Who can interpret?

4.4 Meta-interpretive reflections

4.4.1 Re-interpretation

4.4.2 Overinterpretation

4.4.3 Denial of interpretation

4.5 Formalism in interpretation

4.5.1 Sacrifice to the dead letter of law

4.5.2 Interpretive pragmatism in action

4.5.3 Judicial interpretive reference

4.5.4 Fluidity and vagueness

4.5.5 Ambivalence in legal language

4.6 Legal discourse and legal communication

4.6.1 Communication in law

4.6.2 Information in law

4.6.3 Continuity of information in law

4.6.4 Signification in communication

4.6.5 Creating the language of law

4.6.6 Semiotics of legal discursiveness

Part 5:  Legal Argumentation between Discursiveness and Rationality

5.1 Discursiveness and rationality

5.1.1 Consequences of legal discursiveness

5.1.2 Rationality and freedom as fundamental concepts of legal discourses

5.2 Discursive rationality

5.2.1 Free will and responsibility in legal texts and beyond

5.2.2 Evidence

5.2.3 Contradictions between words and deeds

5.2.4 Linearity of language sublated

5.2.5 Kant and Hegel contribute to shaping of legal discourses

5.3 Legal reasoning and legal logic

5.3.1 Façade-argumentation

5.3.2 Law for logicians

5.3.3 Law of punishment for logicians

5.3.4 Legal definitions

5.4 Talking like lawyers do

5.4.1 Speaking in procedures

5.4.2 Arbitrary use of language

5.4.3 Lies as language use

5.4.4 Abusing the credulity of others

5.4.5 Commercial lies

5.5 Anthropology of law

5.5.1 Friends of irrationality

5.5.2 Magic in law

5.5.3 Male law and Female law

5.5.4 Seclusion and crocodile tears in legal discourses

5.5.5 Some myths in law

5.6 Law as element of ethical and political discourses

5.6.1 Human dimension in law

5.6.2 Human rights discourse

5.7 Converting words into respectable judicial discourses

5.7.1 Metaphor of race as power device

5.7.2 Requiem for race

5.7.3 Problems with monarchs

5.8 Law as a cultural phenomenon

Part 6:  Linguistic Turn in Law

6.1 Negligence of legal science

6.1.1 Shift towards language use

6.1.2 Why care about language in life?

6.1.3 Why care about language in law?

6.2 What is language?

6.2.1 True and comprehensive science of language

6.2.2 Historical conceptions of linguistics

6.2.3 Contemporary tendencies in linguistics

6.3 Specific linguistics for legal sciences

6.3.1 Developing a theory about language for law

6.3.2 Choice of language

6.3.3 Social character of legal language

6.3.4 Language as tongue

6.3.5 Illegal language – using language and ending in jail

6.3.6 Language in other contexts

6.4 Return to concepts

6.4.1 Concepts and terms in law

6.4.2 Fundamental concepts

6.4.3 Institutions and concepts

6.4.4 Miranda rights

6.4.5 Legalization of concepts

6.5 Emergence of meaning in law

6.5.1 Courts committed to ‘ordinary meaning’

6.5.2 Courts shape ‘ordinary language’

6.5.3 Literal apprehension of meaning

6.5.4 Heirs presumptive and presumptive heirs

6.5.5 An attempt to privatize language

6.6 Understandability, vagueness, ambiguity in law

6.6.1 Plain language and plain law

6.6.2 Could language in law be circumvented?

6.6.3 Is content in law a linguistic trap?

6.6.4 Another linguistic trap in law and its globalization: the custom

6.7 Legal linguistics as fact in law

6.7.1 Legal linguistics as an approach to law

6.7.2 Ptolemaic v. Copernican legal linguistics

6.7.3 Legal linguistics as a pragmatic theory of law

6.7.4 Disruptive legal linguistics

6.7.5 Legal semantics and legal pragmatics

6.8 Dissolution of legal linguistics

6.8.1 Is language an epiphenomenon in law?

6.8.2 Norming in law

6.8.3 Systematization in law

6.8.4 Linguistic turn and iconic turn in law

6.9 Perfect stability of legal science

Part 7:  Legal Narrativity or Law as Literature

7.1 Narrativity of law

7.1.1 Orality and literacy in law

7.1.2 Written text and intertext

7.1.3 Discourse analysis in law

7.1.4 Proclaiming laws

7.1.5 Stating the law

7.1.6 Restating the Law

7.2 Setting narrative patterns

7.2.1 Contract as narrative

7.2.2 Legal maxims

7.2.3 Humorous use of legal language

7.2.4 Assertion of facts as narrative

7.2.5 Writings against the government

7.2.6 Law’s true face

7.3 Law is also in the books

7.3.1 Books help jurists more than one would think

7.3.2 Founding discourses

7.3.3 Constitutions as founding discourses

7.3.4 America in the books

7.3.5 America as favorite in a book

7.4 Creating a state with words

7.4.1 Federalists at work

7.4.2 America for sale

7.4.3 Hamilton fails

7.4.4 Consequences for America

7.4.5 Anti-narrativism and law

7.4.6 How to make discourses of narratives?

7.4.7 Importance of fundamental narratives for legal linguistics

7.5 Literary law

7.5.1 Law neglected by poets

7.5.2 Robinson’s law

7.5.3 A stranger’s law

7.5.4 Expanding legal language

7.5.5 Irony in literature about law

7.5.6 Crimes witty and funny

7.5.7 Undesirable class in law

7.5.8 Literary bridges in legal discourses

7.5.9 Law profoundly misunderstood by a big boy

7.6 Rendering facts in law

7.6.1 Presumption and fiction

7.6.2 Precedents and no end?

7.6.3 Some precedents value more than others

7.6.4 How to drink coffee?

7.6.5 Doing things in law

7.7 Real law and literary law

Part 8:  Ubiquitous Legal Argumentation

8.1 Going over bridges

8.1.1 Formation of the notion of law in India

8.1.2 Argumentation in Bhagavad Gita

8.1.3 Sino-Indian argumentative transfers

8.1.4 Sino-centric China

8.1.5 Lexicology and lexicography

8.2 Chinese law in comparative research

8.2.1 Traditional Chinese Law

8.2.2 What is Chinese Law?

8.2.3 Reception of foreign law in China

8.2.4 Legal terminology in the reception process

8.2.5 Application of law

8.2.6 Intertextuality of Chinese law

8.3 Attitudes towards law in Japan

8.3.1 Ideal of kingdom and Japanese imperial rhetoric

8.3.2 Legal-linguistic changes in Japan’s Constitutions

8.3.3 Conflict resolution mechanisms in Japan

8.3.4 Argumentation in Japanese court decisions

8.3.5 Samples of Japanese court decisions

8.4 Lex Mundi

8.4.1 Global law as guiding idea in legal linguistics

8.4.2 Global law as American law

8.4.3 Globalization of law in comparative perspective


ISBN (Hardcover)
Publication date
2014 (September)
Erkenntnistheorie Diskurs Argumentation juristische Sprache
Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien, 2014. 449 pp.

Biographical notes

Marcus Galdia (Author)

Marcus Galdia is Adjunct Professor of Law at the International University of Monaco. His teaching activities comprise public and private international law. The author’s research interests cover issues of legal theory, especially those connected with linguistic operations in law, such as legal argumentation and legal translation.


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452 pages