The Four-bridged Theoretic Approach
Figure 3.4 information processing model of legal discourse
First of all, legal discourse belongs to the specific genre and functional variant of language confined by macro environment of society and culture. As can be seen through Berlo’s SMCR model, socio-cultural systems put together is one of the five determining factors for human communication. This is further backed up by the two figures (Figure 2.6.1 and Figure 2.7) in which both Hallidayan SFL and Fairclough’s CDA spare no pains in emphasizing the key effects of socio-cultural system. According to Fairclough (1995), every linguistic community has its own discursive and ideological norms, and language users are the subjects of certain social and historical status, the carriers of social structure, and builders of power, society and linguistic hegemony. Hence the relation of signified and signifier is by no means arbitrary, but determined by social context and ideological patterns. So far as such an institutional domain as legal discourse is concerned, socio-cultural system primarily involves the ideology and power relations of communicators as well as the values systems behind these power relations.
From the micro level of language, legal discourse also falls into the socio-semiotic system of communication which conveys linguistic information and is confined by linguistic conventions. That is to say, the elusiveness of linguistic signs is governed by linguistic conventions, and the linguistic choices for information processing must abide by linguistic conventions so as to better serve communicative purposes of the interlocutors or discourse users. Linguistic conventions refer to the knowledge of vocabulary, pronunciation, grammar, and usage that is shared by the members of a speech community. The members of the community agree on this knowledge, and it differs (at least in some ways) from the knowledge shared by other communities, and it is mostly arbitrary. Linguistic or social conventions involve the language and or ethnic order of the language spoken today.
To Kaplan (2000), discourse users, i.e., readers and writers, must have some control of the language conventions. They must be able to produce structures that are neither syntactic mazes nor hopelessly ambiguous, and they must arrange such structures in conventional ways. For example, in English it has been long conventionalized to provide margins all around the page, indent paragraphs, spell in more or less recognizable ways, capitalize appropriate items, hyphenate mainly at the ends of lines and usually between syllables, and snug punctuation up to the most immediate leftmost word. Otherwise, texts which are not conventional in appearance may be rejected by readers solely on the grounds of the lack of conventional presentation. In Chinese, there definitely are rather different linguistic conventions which will be further elaborated in Chapter 5.
Moreover, the textual meaning of legal discourse consists in the intention to maintain social order which is often constrained by economy and ideology. According to Šarčević (1997), legal systems determine the implicit rules of legal discourse and legal communication can only be done within certain legal system familiarized to both the source and the receiver. In a narrow sense “legal systems” are the legal rules and institutions of a country. In a broader sense a “legal system” also includes a certain legal tradition or philosophy, as well as techniques or procedures. This means that legal systems can be defined very broadly or more narrowly into national legal systems. According to Li (2005), the concept of legal system can be used to refer to the much broad, inclusive phenomenon of the entire normative enterprise of authoritative and effective decision-making of a society or can be employed to point to particular component of the enterprise, such as the judicial system, the regulatory system or process, etc. Therefore, a legal system not only includes the constitutive and structural elements and characteristics, the formal and procedural concerns and requirements as well as the role, status, and qualifications of elite power participants which refer to the human factors and considerations, but also involves another important component, i.e., the philosophical ideas of political morality (Li 2005: 157). Besides, the idea of legal philosophy defines the moral quality of the legal system of a country and its law (ibid.: 157).
Unlike western civilizations where written law was held in honor and often attributed to divine origin, law in China was viewed in purely secular terms and its initial appearance was greeted with hostility by many as indicative of a serious moral decline, a violation of human morality, and even a disturbance of the total cosmic order (Zhang 2003; Cui 2004). Ordinary people’s awareness and acceptance of ethical norms was shaped far more by the pervasive influence of custom and usage of property and by inculcating moral precepts than by any formally enacted system of law. As regards the Chinese belief in the cosmic order, it was held that correct behavior was behavior consonant with the immanent order which set boundaries to appropriate responses. In the courtroom, the different procedural rules on trial greatly affect the communicators in legal communication, for example, the Anglo-American legal system often adopts adversarial mechanism in the court, whereas in the Chinese courtroom, participants in the judiciary proceedings will be constrained by the undergoing reform of the defense procedures which is named by some scholars as the “third” way combining both the continental inquisitorial and the common law adversarial trial system (Liu 2005).
Lastly, the stance or attitude of the legal discourse users such as legal drafters, the interpreters and readers in the judiciary litigations will definitely play decisive role in information processing. With regard to the interpersonal meaning of language, whereas Hallidayan model indicates that it is mainly realized through patterns of modality, the Appraisal Theory developed out of FSL by Martin and et al. (2003;2005) proves to be more elaborative and powerful tool in discourse analysis. Appraisal system involves three key sub-systems, namely, engagement, attitude and graduation, which aim at the evaluation of the ideology of the discourse users through evaluative lexis. Although legal discourse primarily belongs to highly objective and nominalized neutral language which concerns with the impartial information of certain facts (Bhatia 1987; Maley 1994), yet the interrelationships between the legal writers and readers can never be underestimated. Subjectivity and interactivity also exist between legal discourse users, while the construction and operation of legal discourse are jointly affected by both objective and subjective factors. Attitudes and stance adopted by discourse users are of vital importance in analyzing the information processing of legal discourse.
