The Oxford Handbook of Language

and Law, Peter M. Tiersma and

Lawrence M. Solan (eds.) 2012
Marlon B. Raquel
Juris Doctor Student
Polytechnic University
of the Philippines
College of Law

ENG 3343
Translation:
Theory & Practice
Prof. Rafael Michael O. Paz
Professor

ARTICLES
1. Word Meaning and the Problem of a Globalized
Legal Order by Jan Engberg
2. The Meaning of Silence in the Right to Remain
Silent by Janet Ainsworth
3. The Language of Consent in Police Encounters by
Janice Nadler & J. D. Trout
4. Language and Copyright by Ronald R. Butters
5. Detecting Plagiarism by David Woolls

Chapter 12
WORD MEANING AND THE
PROBLEM OF A GLOBALIZED LEGAL
ORDER
By Jan Engberg

Introductory Remarks
Globalization is a central condition in the life of
people and companies of today.
Criteria in measuring the efforts to establish an
international legal order:
1. Degree of institutionalization
2. Position of a legal regime to multilingualism

Basic Views of Word Meaning

Main challenge to setting up a globalized legal
order: overcoming the language problem
Two language theories:
1. Strong language theory emphasizes the
collective nature of language
2. Weak language theory lays more weight on
the individual side of a language

Attempts at Globalized Legal Orders

It is essential to guarantee a common basis of
interpretation across languages and cultures in
order to make the semiotic process work n a
satisfactory way.
Four different approaches:
1. A common code development of a common
private law system which would be helpful in
further developing commercial transactions
inside the EU and cross national borders

2. Model laws establish the so-called model laws

such as the United Nations Commission on
International Trade Law which is a set of
statutory regulations for conducting
international commercial arbitration. This text
can be used to create national versions in the
official languages of a national jurisdiction.
3. A restricted number of official languages
Work with a limited number of authorized
language versions of a single instrument which is
currently adopted by UN Treaties.

4. Authoritativeness of all languages involved

establish a supranational and multilingual
system. In the EU, we see a system of 23
different language versions of the basic
documents on which legal interpretants draw.
Each version has a status of an original.

Chapter 20
THE MEANING OF SILENCE IN THE
RIGHT TO REMAIN SILENT
by Janet Ainsworth

INTRODUCTION: A VENERATED RIGHT HONORED MORE IN

THE BREACH THAN IN THE OBSERVANCE?

Right to remain silent one of the cardinal

principles of American criminal jurisprudence;
one of the great landmarks in mans struggle to
make himself civilized
Miranda Doctrine You have the right to
remain silent.
It is exercised only in the course of a criminal
investigation.

Surprisingly, current American legal doctrine as

actually embodies an attitude toward the right to
remain silent that is at best ambivalent and at
worst aggressively hostile towards the exercise of
this right.
The US Supreme Court has held that, ironically,
simply remaining silent in the face of police
questioning does not count as a legally
effectively exercise of the right to remain silent.

A LINGUISTIC VIEW OF THE MEANING OF

SILENCE
Silence the absence of verbal expression; serves as a
myriad of communication functions semantic,
pragmatic, and socio-pragmatic; called the least
semantically determinate linguistic element
The ascription of meaning to silence varies culturally.
1. Silence serves as subsidiary functions as boundary
markers, junctions, and turn-taking signals in cultures
where interpersonal interaction is largely through talk.
2. In other cultures, interaction is more frequently
through nonverbal means, where silence is the primary
source of interactional mediation.

Linguistic researchers have developed taxonomies

of more than twenty different interpretations of
the meaning of silence in response to an
utterance.
Linguistic researchers are understandably
reluctant to ascribe definitive meaning to
specific instances of silence without a highly
particularized examination of the context in
which silence at issue occurred.

ADOPTIVE ADMISSIONS WHEN SILENCE CAN

BE TREATED AS A CONFESSION

Under the legal rules of evidence, silence in the

face of an accusation is interpreted as an
affirmative agreement by the accused person
that the accusation is true.
Few courts over the past years expressed
skepticism about its soundness and urged that
judges exercised restraint in presuming that
silence can be treated as though it were an
admissible of guilt.

Nevertheless, the overwhelming judicial practice

has been to permit the introduction of adoptive
evidence liberally as proof of wrong-doing by the
silent party.
Since it is the defendants silence, not the
accusers statements, that are taken to be the
statement admitted in the court, there is no
hearsay problem with admission of the evidence
even if the accuser never appears in court.

ADOPTIVE ADMISSIONS DURING POLICE

QUESTIONING
The adoptive admission rule can become a particularly
dangerous trap for those suspected by the police of
involvement in a crime. Since a lay person assumes that he
has the right to remain silent and chooses it could later be
used against him to imply his guilt.
Because adoptive admissions are treated identically to
explicit confessions, the question here is whether failing to
answer police allegations is tantamount to a confession as
long as the allegations were made prior to reading of the
Miranda rights.

The use of adoptive admission doctrine in the

context of a police investigation means, that,
prior to arrest, suspects should actually be
warned, Anything you say can be used against
you. And if you dont say anything, that will be
used against you, too.

Chapter 23
THE LANGUAGE OF CONSENT IN
POLICE ENCOUNTERS
By Janice Nadler and J. D. Trout

Introduction
Public encounters between citizens and police officers
When police of officers seek permission to conduct a search, citizens
often feel enormous pressure to say yes. But in most criminal
cases, judges do not acknowledge these pressures, generally
choosing instead to spotlight the politeness and restraint of the
officers language and demeanor. By ignoring the pragmatic
features of the police citizen encounter, judges are engaging in a
systematic denial of the reality of the social meaning underlying
these encounters, and are thereby constructing a collective legal
myth designed to support current police practices in the war on
drugs.

The role of consent searches

in criminal investigation
Law enforcement practices in the United States
today frequently include on-the-f y
searches to detect evidence of crime. These
searches are not a result of an ongoing
investigation, but rather the result of police
acting on their instincts and training regarding a
persons appearance or behavior or even
presence in a particular place

As a tool for ferreting out possession offenses, consent

searches are extremely effective. First, consent searches
permit police to search when they otherwise would be
prohibited from doing so.
And consent searches are effective in much the same way
junk mail or spam email is effective. If police stop and
search enough people, it is just a matter of time until they
find evidence of crime. In the next section, we discuss the
circumstances under which it is legally permissible for the
police to conduct a consent search.

Legal standards for consent

searches: the free to terminate test
Government searches and seizures are governed
by the Fourth Amendment to the United States
Constitution, which guarantees the right of the
people to be secure in their persons, houses,
papers and effects, against unreasonable
searches and seizures.
To be valid, consent must be given voluntarily.

Two key issues:

(1) whether a consent search lacks sufficient
voluntariness
(2) whether a person who consented to search
had been unlawfully seized

Language

Pragmatics asics - pragmatics takes into account

the potential impact of social norms and
subtle cues that are typically expressed in
language, and is informed not only by linguistics
and philosophy, but also psychology and
anthropology.
Cooperative Principle - which posits that
conversational partners cooperate with each
other and will contribute what is required by the
accepted purpose of the conversation.

Pragmatics of police encounters In these encounters, the

police officers main purpose is to get information about what
the person is doing, and get permission to do something else,
like search their person, house, car,
bags, etc.
Pragmatics and police authority courts of en analyze police
encounters as if the conversation that took place has a fixed
meaning, which can be readily
gleaned without reference to the context.
People in positions of authority can control the message
conveyed by linguistic expressions in a number of ways. T e
cues of threat go well beyond speaker intentions. Posture,
mode of dress, physical proximity, location, identity, and the
authority of the speaker all contribute to meaning.

Judicial misunderstandings of pragmatic

implicature in police encounters Courts
routinely conclude that searches that ensue
during policecitizen encounters are
voluntary. To justify this conclusion, judges
highlight the language of the exchange and
minimize important contextual features, like the
fact that the speaker is armed.
A policecivilian encounter is consensual so long
as the police do not convey a message that
compliance with their request is required.

Empirical evidence regarding the

language of consent in police encounters

Given the nature of police authority and the

context of the citizenpolice encounter, it is
highly likely that police requests to search are of
en interpreted as commands to permit
the search to take place. But the extent to which
citizens feel compelled to accede to a
police request is an empirical question.

Example:
Consider an illustration used by courts as the
paradigmatic example of when no seizure takes
place: a police officer approaches a citizen on a
sidewalk and asks a question. Recall that if a
police officer unlawfully seizes someone, then any
subsequent search is deemed invalid.
The US Supreme Court has characterized this
kind of sidewalk encounter as a perfect example
of police conduct that supports no colorable claim
of seizure.

Conclusion: hollow politeness and its

consequences for innocent citizens
When police question citizens or rummage through their possessions
and find nothing,
they leave in their wake a flood of shaken people. Those feelings of
contingency or personal insecurity frustrate well-being. At best,
subjecting citizens to suspicion less searches
amounts to a loss of liberty. At worst, it threatens the legitimacy of the
police and the
legal system more broadly.
By choosing to ignore the intimidating power of language in a
commanding context, the courts have adopted an interpretation of
police exchanges with citizens that favors expedience over justice, and
the interests of an unsustainable war on drugspolitically motivated
and historically datableover the rights of citizens, inalienable and
eternal.

Chapter 33
LANGUAGE AND COPYRIGHT
By Ronald R. Butters

Legal Aspects of Copyright

A copyright is a legally termed intellectual
property, including works of visual art, music, and
language.
A patent is intended to limit the freedom to
manufacture specific inventions to the creator of
those inventions (or the investors assignees).

Trademarks and service marks are legal means

of restricting the publics use of specific words,
phrases, and design insofar as they are used as
designator of products and services.
Trade secrets are also a kind of intellectual
property which the owner has taken measures to
keep secret for the purpose of getting a jump on
competitors.

Copyright and other types of intellectual

property
National laws make a distinction between
copyright violations, which involve, original works
of authorship, often works of art, and the
counterfeiting of goods which is generally
treated as trademark violation, not a matter of
copyright.

The scope of copyright protection

US Constitution gave Congress the right to grant
copyrights. Congress subsequently gave copyright
protection to original works of authorship fixed in any
tangible medium of expression, now known or later
developed.
Authors including writers, painters, sculptors,
choreographers, the makers of film-, video-,and soundrecordings, and those who generate other scholarly,
scientific, religious, journalistic, and artistic expression.

Works of authorship is like wise broadly

conceived (including not only publications and
recordings, but also the right to perform a play or
show a video.
Infringement - Issues of language and copyright
law arise when the owner of copyright linguistic
material alleges that someone elses later work in
the fringes on the owners copyright.

The role of linguistics with respect to

copyright infringement
Three historical developments have created new
complexities that are significance in considering
the relationship between linguistics and copyright.
1. Copyright has been impacted by various
technological innovators that combine spoken
language with visual images in movies, television
commercials, and on the internet.

2. The notion of language owing to developments

within linguistics science in such areas of inquiry
as sociolinguistics and dialectology, pragmatics,
discourse analysis, and semiotics.
3. Development in forensic linguistics have created
methodologies in author identification techniques
that have been applied to a number of different
criminal and civil questions in courts of law.

Chapter 37
DETECTING PLAGIARISM
By David Woolls

Introduction
Plagiarism copying from a written or published
source, fully or partially without attribution to
that source.
Detection An investigation of a set of texts for
the presence of apparent plagiarism

Humans and Computers

Computers read text as a stream of characters and
recognize words by their boundaries: spaces,
commas, periods, and the like.
Humans do much the same as in English we read
from left to right and utilize the same boundary
markers.

The Detection Principle

The primary purpose of electronic plagiarism
detection systems is to identify potential
problem areas.
Fundamental requirements for anyone bringing
a charge of plagiarism are the following:
1. the suspect sections of documents under
review are recognizably present in a document
published earlier

2. The suspected author is known or presumed to

have had access to this earlier document; and
3. Such sections have been used in such a way that
the reader would not realize that the words do
not originate with the author of the suspect
document
Electronic detection detecting plagiarism by
means of using computer software and the
internet

Detection in Practice
Indexing used to locate any sequence when
comparing document
Types of indexing:
1. Inverted index Words are considered primary
interest can be looked up and the pages on which
they occur are listed.
2. Computer index Most words, if not all words
in a document will be contained in a computer
index.

Fingerprints also called digital fingerprints;

algorithms produce a number of the same length
for anything from a full document down to a
single word.
Example:
Detecting plagiarism electronically is only
possible because of the creativity of the human
mind.
BE 92 69 25 63 0D 3C A1 5C 92 D5 42 C0 00 94
E4 65 F2 FF 08

Limitations:
1. What a machine can do that a human cannot is
to check a whole document rapidly, either in its
entirety or in componential form against each of
a set of other documents.
2. The change of a single character produces a
very different number which is a deliberate
aspect of a security-oriented encoding system
which is designed to indicate even a single
change.

Matching with Words

Fuzziness does not require the same word or the
same form of a word or the same sequence of
words to appear in a sentence or some other text
segment, but some lexical similarity in the
segment is expected.
Stop-lists frequency results that are collected
together and discounted together for vocabulary
comparison purposes.

Content words words other than the function

words; most often used for initial comparison
and more precision is attainable by dividing a
document intro segments
Different word forms Any agreed definition of
similarity needs to take account of the fact that
words can change their form or position.
Detecting and detection, for instance, are
clearly related to each other and are to some
extent interchangeable, although substituting
one for the other does not always preserve the
exact meaning.

Practical Detection
In academic writing, the majority of plagiarism
detection is now done using one or more of the
automated detection techniques.
A human has to make the decision whether to
highlight a whole sentence which has some
measure of similarity with another or just
identify the similarities or the changes.

Conclusion
Automated plagiarism detection is difficult once
there is a departure from full copy-and-past of
sections of another document.
Only exhaustive and detailed electronic
comparison can alert a human reader to the
existence of a problem.

END OF
PRESENTATION