How many sexes is "both sexes"? Legal and lay interpretations of commonplace words in Japan's marriage equality debates and possible implications for linguists.
Nihon Uiversity, Japan
Since the establishment of a lay judge system, Japanese linguists (e.g. Okawara, 2008) have been investigating differences between lay and lawyer understandings of courtroom lexis. Much of this focuses on legal terms, but this study will compare opinions about a phrase in common parlance: "both sexes". According to a 2017 poll 51% of Japanese favour same-sex marriage. Following recent moves in apparently LGBT-supportive Nepal and Taiwan to define marriage heterosexually the movement of opinion in Japan is unpredictable, but given that support for marriage equality runs at 70~80% among those under 40 it will likely increase. However, in a handful of cases judges have ruled against same-sex unions on the basis of constitutional Article 24, which makes marriage contingent on consent from "both sexes". There is evidence that the 1947 drafters had the rights of women in mind when including this phrase, and no evidence they had any thoughts on same-sex marriage, so it must be interpreted in light of current circumstances. Several constitutional scholars argue that it does not rule out same-sex unions, especially when read with other provisions about personal freedom. To what extent is this a sociolinguistic as well as a legal problem? Referring to judgments, academic opinions and questionnaire data from lay informants, this enquiry discusses the sociolegal complexities of apparently straightforward language and draws parallels between monolingual jurisdictions like Japan and bilingual jurisdictions like Hong Kong and Malaysia, where disputes over the meaning of everyday words have had wide sociopolitical ramifications.
Analyzing the linguistic features of select Republic Acts of the Philippines
University of Santo Tomas, Philippines
Upholding justice must be conceived right from the start of the legislation process, which starts from the drafting of the bill, approving the bill, to making the bill a statute or Republic Act, in the context of the Philippines. However, legal documents such as Republic Acts are not always comprehensible most especially to the target readers mainly because of the nature of the legal language. Thus, this paper analyzed the linguistic features of select Republic Acts (RAs) in the Philippines. The corpus analyzed in the study consisted of RAs culled from the 13th to the 17th Congress of the Philippines’ official website. The results of the study reveal that legal terms, archaic words and use of shall are found in select Republic Acts in the Philippines. Legal terms and archaic words could contribute greatly to the readability and comprehensibility level of the law. The misuse of shall is likewise evident in the Republic Acts. Thus, this paper challenges legal draftsmen’s definition of accessibility of information and a shift in the paradigm of legal writing to make legal documents such as Republic Acts understood by the common people.
Two ways do make it: sense making devices in Supreme Court decisions of contested cases in comparative perspective
Universidade Federal Fluminense, Brazil
Sense making devices for constructing the meaning of legal norms by courts and other legal bodies have had recent, albeit modest attention by the law and language literature (e.g. Padua 2017; Stein 2017). This literature uses linguistics' analytical methods and concepts to put to empirical and conceptual test legal theories of interpretation, that usually operate in a normative noumenal world, without reference to actual practices of legal interpretation in concrete settings. This paper aims to expand on the law and language literature, by adding a comparative dimension to the investigation of sense making practices empirically used by courts. Using ethnomethodology of written texts as its main analytical method (Watson, 2009; Wolff 2011), the paper presents two case studies of contested decisions – i.e., decisions for which there is substantial disagreement within the court and in the legal community --, one from the U.S. Supreme Court and one from the Brazilian Federal Supreme Court. Analysis points to preliminary evidence of two different patterns of sense making devices each court uses in construing controversial meanings to legal texts. Whereas the U.S. Supreme Court stays focused on the text and use syntactic manipulation to construe a meaning that is consistent with the normative view of the majority, the Brazilian Federal Supreme Court puts the text to the background of the argument, while foreground other normative issues to account for its decision. Implications for this preliminary evidence and future avenues of research are discussed.