Functions of Modal Verbs in European and British Legal Documents

Functions of average(prenominal) auxiliary supplemental verb auxiliary verb Verbs in European and British judicial DocumentsFunctions of Modal Verbs in European and British legitimate DocumentsAbstract Researches in wrangles for special purposes puddle qualified reasoned texts as a classifiable type of texts. The purpose of this study is to describe linguistic features of normal verbs which were arrange in contrary types of wake little piece of writing and to examine the reasons for their wasting disease. In this topic I will try to comp ar the uptake of modal verbs in European guidings and British Statutes and to investigate the fetchion of engagement in heavy texts much(prenominal) as beats which atomic derive 18 texts which lay down the obligations and the rights of the parties to the weigh. Key speech communication coherence, obligation, modality, legislation, variety, statement, behaviour.Modal Verbs in Contract Law on that point argon different types of licit writing. According to their purpose there ar operative level-headed documents, expository documents and persuasive documents. Legal terminology is widely spread in every(prenominal) argonas of social life and it feces be combined with delivery from different domains. The modus operandi of the law is double regulative and constitutive. The level-headed musical flare re applys a sublanguage which includes a wide range of texts and situational patterns. The wakeless music genre contains a variety of sub-genres much(prenominal) as statutes, conventions and contracts.There are different ship canal of crush outing obligation in efficacious position. Legal documents whitethorn prohibit authoritative litigates, may confer rights or create obligations, may permit or authorize certain actions. because, there are four types of legal rules authorizations, obligations, prohibitions and permissions. There are certain rules employ in legal language to recrudesce the se rules nut these are not subject matter to grammar rules hardly to drafting principles. The em author study will focus on the investigation of grammatical ways of dribbleing obligation through the exercise of modal verbs.The textual organisation of a contract contains the following divisions title, introduction, recitals, and definitions, body of the documents, furnishs, signatures and dates. The contract law developed in the 19th century and derives from the principles which characterized the Industrial Revolution. Nevertheless, the origins of contract law are untold more ancient than that and are to be engraft in the archeozoic common law of the Middle Ages. The main preoccupation of society at that eon was land ownership and law developed very cursorily in similarity to the protection of ownership of land or of interests in land. As a result, the law of that time was withal mainly interested with property rights. The distinction that the law drew in basis of ident ifying the enforceability of rights was amongst bodyal pledges and in crapal ones. A formal agreement was one make in writing and which was authenticated by the practice of sealing. This is the origin of the deed, which was the mode accepted for transfer of land and interests in land up to 1989, when the sine qua non to complete the document by the process of sealing was relaxed in party favour of the already common practice of witnessing the document.Narrative contracts often contain ambiguities (e.g., conflicts and gaps) and these moldiness be avoided or at least the conflicts arising from them resolved. Furthermore, there may be complex interdependencies between contract cla social occasions that can be hard to lede down. The content of the contract has to be in correctity with the legal modeling and it forces the parties to involve themselves in politeness strategies in order to avoid the demo threatening acts. The modal verbs occurring in contracts contrive double or twofold functions and this applies to the modals shall(a), will, can and essentialiness. The modal will may be utilise to pack either an obligation or a prediction, may and can register permission or fortuity while must may point obligation (deontic use) or logical necessity. The strategies placing the parties to the contract nether some strain of obligation are the to the highest degree frequently utilise directives in slope contracts. In order to express obligation in a contract the modal shall is utilize and expresses the illocutionary force of an order The distri furtheror shall pay mission on a quarterly basis The regulation of behaviour in a contract can be made by bare prohibitions and here the modal verb shall is use again The Representative shall not be entitled to enter into all contract or obligation on behalf of the Company without the express written consent of the Company being commencement obtained. Statements of permission issued by some authority a re usually conveyed with the economic aid of the modal verb may The employer may determine the hiring at any time by giving one months previous notice in writing The contract overly stipulates the limitations of liability and the assignment of benefits which are expressed with the military utility of shall. In this geek the or so frequently employ verbs in company with the auxiliary shall are entitle, relieve, accept, have power, etc. In the language of contracts shall represents the psyche means of expressing obligations. Obligations and intentions are the main aspects dealing with a contract. The modals shall and will have each been used to express modal meanings and to mark succeeding(a) time. unless shall is rarely used to usher future time. Shall is a modal used to impose obligation on the subject of a sentence. In contract law it conveys the meaning has a duty to. Lawyers run to avoid utilise the modal must, because they find it too bossy. An some some other al ternative instead of shall could be will alone it seems less promising. Even if legion(predicate) legal drafters tend to avoid using the modal must, this may be an alternative to shall as a means of expressing obligation. The use of must instead of shall may express any obligation whether it is impose on the subject of a sentence. For specimenThe Company must reimburse the gross sales charabanc for all real expenses./The meeting must take place at the companys headquarters. unless a disciplined use of shall to impose an obligation on the subject of the sentence makes clear who owes the obligation The Company shall reimburse the Sales Manager for all authorized expenses. An obligation can be expressed in other ways by using passive voice The Sales Manager shall be reimbursed for all authorized expenses. Or one could use is entitled to The Sales Manager shall be entitled to be reimbursed for all authorized expenses. Shall is besides used to express future time in contracts an d these may result in confusion. There are cases when the simple present tense would be more appropriate as for example This agreement shall be governed by the Los Angeles law. Due to the event that shall is unusual in normal speech, this modal verb has been criticized by the Plain English Campaign, which recommends the use of must to express obligations. (Tiersma, 214).Comparative Analysis of Modal Verbs in European leadings and British StatutesModal verbs usually appear in the sequence of verbs in a verb phrase. They are finite verb form with no inflected endings and no past tense. They are followed by the short infinitive. The most frequently used modals in legal English are shall, may, must, would, will followed by can, ought to, should. According to the European style guide the enacting terms of the EU legislation can be separate into two linguistic categories imperative terms and declaratory terms. The imperative terms may be further divided into positive and negative com mands and permissions and the declarative terms are those terms that are implemented by equity of being declared. The study of modality is concerned with the meaning of the modals. Legal language contains both deontic and epistemic modality. Epistemic modality shows how certain is a verbaliser system about an expressed utterance. Deontic modality involves both language and action and refers to the instances when the speaker orders, promises or places an obligation to someone. Deontic modality can be divided into a) directives (expressing possibility by the use of may or necessity by the use of must) b) commissives (expressing promises) and imperatives.I carried out a comparative analysis to show the absolute frequency of the modals in both European and British legislative texts. The European directives used in this work were taken from the Official Journal of the European Communities and the Acts of fantan from the online UK Statute Law Database.Table 2 Act of fan tan Directiv e Shall 60 301 Should 20 150 Will 10 6 Would 30 12 mustiness 90 1 Can 5 30 Could 10 5 May 100 96According to bow 1 the most frequently used modal verb in the European directive is shall, while may is the most frequently used modal in the British Act of Parliament. EU legal drafters tend to use modal verbs in prescriptive statements and should is used instead of must because it is less strong than must. Bhatia states that shall not only sustains the myth of precision in legal language but besides perpetuates a style and language that differentiates the genre from that of other professions.(Bhatia, 101-102) The verb shall is one of the most frequently used modal auxiliary in legislative writing, especially in European legal texts, and and then it fulfils a variety of functions. Crystal and Davy talk about the different uses of this modal verb and state that in legal English Shall is invariably used to express what is to be the obligatory consequence of a legal decision, and not only as a marker of future tense, which is its main function in other varieties.(Crystal and Davy, 206-207) In the European legal text shall is used to indicate a positive command, as for exampleFor authorisation as a pay institution, an application shall be submitted to the competent authorities of the home instalment State Shall may be also used to give directions or to indicate future events as in the following example each(prenominal) element shall be included in the sum with its positive or negative sign. Here the verb shall may have the meaning of is to be included, but it can be also interpreted as a future event meaning that after the directive comes into force each element will be included in the sum. Shall is also used in both European and British texts to express an order If the retribution religious service drug user provides information additional to that qualify in Articles 37(1)(a) or 42(2)(b), the payment service provider shall be liable only for the execution of payment transactions in accordance with the unique identifier provided by the payment service user. (Directive 2007/64/EC, 319-31) In this example taken out from the European directive, the modal verb shall indicates the obligations of the payment service provider which represents the addresser. So, according to this provision the addresser must conform to this obligation of executing the payment transactions. In British legal texts shall is used to express an obligation Accordingly, in determining in the case of an offender whether it should take steps as mentioned in sub dent (1), the judicial system shall also have regard to the matters mentioned in those paragraphs.(Criminal justice and immigration Act, grammatical constituent 2, p. 8) In this example taken from Criminal Justice and Immigration Act shall expresses the obligations of the court and the steps that have to be taken in determining the case of the offender. Shall can be used to express the application of a directive This Directive shall apply to payment services provided within the Community. (Directive 2007/64/EC, 319-9) Shall can also be used to state rulesThis Section shall apply to other payment transactions, unless otherwise agreed between the payment service user and his payment service provider, with the exception of Article 73, which is not at the government of the parties. (Directive 2007/64/EC, 319-30) In this example shall serves as an indicator for the application of this provision. It also indicates the rules according to which this section is valid. Shall may be used to express prohibitionssuch credit shall not be subsidisationed from the funds received or held for the purpose of executing a payment transaction (Directive 2007/64/EC, 319-17) The use of shall may also create ambiguity, especially in British legal writingsNo order or regulations which, by virtue of section 18A, is or are to have effect for a limited extent shall be made unless a draft of the order or regulations has been put before, and approved by a resolution of, each House of Parliament(Criminal Justice and Immigration Act, Part 4, p. 45). The predicate from this sentence, containing the modal auxiliary shall refers to an dyspneal subject no order or regulations. This indicates that a rule is imposed an abstract thing (in this case order or regulation) and the agent of the action is not specified. So, in this example we have passive voice without an agent. This reflexion shall + BE + past participle is frequently used in both types on legal documents. The pull shall + short infinitive is also widely used especially in European legal texts. Critics also say that legal drafters should avoid using a negative subject with the affirmative form of shall. (No orders or regulations () shall be made). Shall is a modal verb which expresses a legal obligation, but in most of the cases this verb occurs with non-human subjects. Anna Trosborg argues that statements with non-human s ubjects typically refer to functions of the statutory instruments, they explain when a law is effectuated, how far an act extends, whom it affects, how a term is to be belowstood, etc., and such they serve as conditions to be considered by the citizens as well as the court.(Trosborg, 106). In this cases the modal verb shall has a declarative function and here are some examples when the modal verb is used with dyspnoeic subjectsAn authorisation shall only be granted to a legal person established in a Member State (Directive 2007/64/EC, 25).A provision shall not be contained by virtue of subsection (1)(b) in a warrant below section 4A unless it satisfies the following two conditions (Criminal Justice and Immigration Act, Part 6, p. 71) In these texts I did not find any sentences where human subjects are specified. In most of the instances shall is used in the passive voice with non human subject. Because of the incident that most of the passive constructions with shall are agentl ess, most occurrences of shall are unmotivated. Verbal groups are characterized by a high number of non-finites. Among the finites the most frequently found group is modal auxiliary+ be +past participle, and in this construction the most used modal auxiliary is shall which expresses deontic modality. Crystal and Davy say that shall expresses what is to be the obligatory consequence of a legal decision and not alone as a marker of the future sense, which is its normal function( Crystal, Davy, 206-207). e.g. much(prenominal) waste shall be subject to all provisions of Directive 75/442/EEC. It shall in particular be destined for duly authorized facilities only, authorised according to Articles 10 and 11 of Directive 75/442/EEC, subject to all provisions of Articles 8, 12, 13 and 14 of Directive 75/442/EEC( courting C 176/05). In this example shall occurs in passive sentences. In legal language shall does not indicate the future, it indicates an obligation. Shall is also to be fou nd in declarations. It is commonly used in legal language and therefore it has the function of indicating that the document in which it occurs is legal. The verbs used with shall are selected from a small number of lexical sets, such as apply, be, preclude, exceed, act, vacate, etc. The frequency of this modal and the shunning of the modal auxiliary must shows in a way an receipts over the British style, but its use in excess also leads to ambiguities regarding its different meanings. Another modal verb that is predominantly used in legal texts is the modal auxiliary may. As table 1 shows, may is the most frequently used modal verb in British Acts of Parliament. May expresses permission, but it has some other additional meanings. The following three examples have been taken from the Criminal Justice and Immigration Act and show different instances when this modal auxiliary is used (1) or with the necessitys of any community order or any youth community order to which he may be su bject (2) The court may make a youth replenishment order in respect of the current offence instead of wonderful a fine (3) Rules under sub-paragraph (4)(a) may, in particular, make provision in relation to (4)The secretary of State may by order renovate paragraph 2, 3 or 4 by substituting for any reference to an amount of money or a number of hours or days there specified a reference to such other amount or number as may be specified in the order. In the third example reference is made to the inanimate subject rules, while in the first, second and fourth example references are made to human subjects. In the first sentence we have the pronoun he as a subject and in the second sentence the noun court. The most frequently used subject in combination with the modal may is the noun court. In the first sentence may indicates probability, possibility although this modal is not normally used to convey possibility or probability. This feature is feature film for the common usage. In th e fourth example may has the meaning of to grant a right or a power. But this sentence is a little bit ambiguous because the modal verb may can plain refer to the possibility that the Secretary of State might amend the paragraphs under certain circumstances. The use of the negative form of may can be ambiguous. In spite of the fact that the positive form of this modal has a different meaning from must and shall, the negative form is the same. The negative form is used to express prohibition, something that is forbidden, and that is why this form should normally be avoided. Therefore may+not is used in the sense of limiting the rights or the powers of a provision as in the following exampleThe power conferred by subsection (1) may not be exercised in relation to any sentence or order if an draw, or an application for straggle to appeal, against that sentence or order has been determined (Criminal Justice and Immigration Act, Part 3, p. 206) In the example the negative form of may limits the power of this provision under certain circumstances. This means that the power under section 1 cannot be used in relation to any sentence if that appeal has already been determined. The modal verb must is used to describe a requirement or a prohibition and in general English it expresses obligation. As table 1 shows, it is frequently used in British Acts of Parliament. The European drafters have tried to avoid using this modal auxiliary, perhaps because of the fact that shall is the most frequently used modal verb in the European directives. However, critics have argued that the use of shall and must at the same time leads to ambiguity because readers may not understand any more whether different meanings are intended. Must + not expresses a prohibition, as in the following exampleThe Secretary of State must not release a person under subsection (2) unless the Secretary of State is satisfied that it is not necessary(Criminal Justice and Immigration Act, Part 2, p. 22). M ust also expresses an obligationWhere on a reference under subsection (1) relating to any person the Board recommends his warm release on licence under this Chapter, the Secretary of State must give effect to the recommendation. (Criminal Justice and Immigration Act, Part 2, p. 22). Here the verb must suggests that the Secretary of State has the obligation to give effect to the recommendation.To sum up the functions of the most frequently used modals, one can say that the modal shall is the most frequent auxiliary used in the European directives. It fulfils many functions from imposing an obligation to creating rights or defining words. May is frequently used in British statutes and expresses permission and authorization. Must is used to express obligation and prohibition in legal language and should not be used as an alternative to shall. The language of the legislative documents is not only enlightening providing the reader with details and useful information about their rights and obligations, but it also specifies and mentions the authority which issues, orders or prohibits certain acts. This authoritative and permissive dimension is conveyed in legal English by the means of modal verbs.BibliographyBhatia, Vijay. Analysing Genre manner of speaking Use in Professional Settings. London Longman, 1993 Crystal, David. The Cambridge Encyclopedia of Language, Cambridge Cambridge University Press, 1997. Crystal, David and Davy, Derek. Investigating English Style. London Longman, 1969. Garner, Bryan. A Dictionary of Modern Legal Usage, second edition, Oxford University Press, 1995. Kimble, Joseph. The galore(postnominal) Misuses of Shall in Scribes J. Legal Writing, 1992. Mellinkoff, David. The Language of Law. Boston Little Brown, 1994. Taylor, Christopher. Language to language A practical and theoretical guide for Italian and English translators. Cambridge Cambridge University Press, 1998. Tiersma, Peter. Legal Language, Chicago University of Chicago Press, 1999. Trosborg, Anna. Rhetorical Strategies in Legal Language. Tbingen Gunter Narr Verlag, 1997. headCase C 176/05, KVZ retec GmbH v Republik sterreich, March 2007 Criminal Justice and Immigration Act 2008 DIRECTIVE 2007/64/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC