Bjarne Blom and Anna Trosborg An Analysis of Regulative Speech Acts in English Contracts - Qualitative and Quantitative Methods

This paper deals with the language used to express legal speech acts in simple contracts within the field of English Contract Law. The central objects of study are regulative functions, i.e. directive and commissive speech acts with a particular view to establishing realisation patterns of these rhetorical functions. The hypothesis that the speech acts subjected to analysis are homogeneously distributed linguistic realisations typical for simple contracts is tested by means of partly manual analysis, partly machine-based quantification of the data of investigation. The findings show that statistically significant items are distributed homogeneously in the corpus examined, and that the choice of individual strategies can be interpreted in terms of the face redress required by the socio-pragmatic situation. 1. Background The field of legal language is unique with regard to distinctive lexical features, such as technical terms, archaic expressions, etc., and it is renowned for its syntactic complexity, which has given rise to a number of studies concerned with these aspects (see, e.g. Danet 1985:278-87). Most research studies in the field of pragmatics have been based on nonsequential hypothetical data exemplifying everyday conversation (including work on politeness phenomena, e.g. the work of Brown/ Levinson (1978, 1987) and the growing number of studies based on their theory). With regard to the written medium, syntactic/semantic studies prevail, and very few studies are concerned with pragmatics and politeness (see, e.g. Myers, 1989, Pilegaard, 199O). Pragmatic studies of legal discourse are limited to a few studies (e.g. Kurzon 1986, Werther/ Helmersen 1989, Blom 1991, Trosborg 1991). In this paper, authentic contracts are analysed for socio-pragmatic occurrence and pragmalinguistic realisation of regulative acts. 2. Communicative function: regulative speech acts Language is critical in regulating human behaviour. For the specific purpose of constructing contracts, language is used as a means of 'ordering human relations', i.e. language is used with a regulative function. In his taxonomy of illocutionary acts, Searle (1976) outlines two major categories of regulative acts: directives and commissives, with the same 'direction of fit', world-to-words, the illocutionary point of which is the speaker’s intention to regulate the world, as opposed to, for example, representative speech acts where the words are adjusted to match the world (‘words-to-world’). Establishing classificatory kinship between requests and promises would simplify Searle’s taxonomy. However, in his taxonomy the two categories are different: »whereas the point of a promise is to commit the speaker to do something (and not necessarily to try to get himself to do it), the point of a request is to try to get the hearer to do something (and not necessarily to commit or obligate him to do it).« (1976:12) Attempts to assimilate the two categories have been made, suggesting either that promises are really a species of requests to oneself (e.g. John Boyd ibid.) or that requests place the hearer under an obligation (e.g. William Alston ibid. and John Kearns ibid.). Searle, however, accepts neither solution but commits himself to »the inelegant solution of two categories with the same direction of fit« (ibid.). The present framework suggests a classification in which directives and commissives are subclasses of the same category of regulative acts. In contracts the commitment can be established either as an obligation issued by one party over the other (i.e. directive), or by a party committing him/herself (i.e. commissive). Within a very general definition, the nature of a contract may be defined as follows: »A contract is a legally binding agreement, that is, an agreement imposing rights and obligations on the parties which will be enforced by the courts« (Redmond 1979:19) Thus the language of simple contracts refers to mutual rights and obligations in relation to promise and consideration, and we shall now consider the “nature” of the underlying linguistic functions for distributing such rights and obligations: directive and commissive acts. 2.1. Directive acts A directive is an illocutionary act by means of which the addresser tries to influence the behaviour of the addressee. Directives are impositive acts which have been defined as follows: »Impositive speech acts are described as speech acts performed by the speaker to influence the intentional behaviour of the hearer in order to get the latter to In outlining the terms of the contract, rules are formulated with the intent of ordering human relations. One party of the contract (e.g. principal, seller, franchiser) imposes a certain behaviour on the other party (e.g. agent, buyer, franchisee) and vice versa. A directive is a face-threatening act involving a threat to the addressee's negative face, which has been defined as »the want of every »competent adult member« that his actions be unimpeded by others« (Brown/Levinson l987). An addresser issuing a directive attempts to exercise power or direct control over the intentional behaviour of the addressee and in this way intrudes on the right to freedom of action. The degree with which the addresser tries to impinge on the behaviour of the adressee is referred to as the degree of imposition. In order to lessen the impact of the imposition on the addressee, the addresser has recourse to politeness strategies. The explicitness with which the act to be performed (or not performed in case of prohibitions) is referred to as the directness level of the directive. 2.2. Directness levels of directive acts When issuing a directive, various options are available to the addresser. Within the theory of Brown/Levinson (ibid.), the directive can be expressed ‘on record’ or ‘off record’ , i.e. with or without explicit directive force, respectively. If the former option is selected, the addresser can voice the directive with or without face redress by using mitigating devices.