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Despite the glaringly obvious fact that both legal theory and legal practice are, and have always been, heavily dependent upon the tools of rhetorical and linguistic analysis, no coherent or systematic account of the relationship of law to language has ever been achieved. Even worse, the occasional exercises that modern jurisprudence has conducted in the direction of normative linguistics, in studying the "grammar" of law, or the philosophy of ordinary language, in outlining the semantics of rule application, have been exercises aimed at asserting or defending the positivistic view that law is an internally defined 'system" of notional meanings or of specifically legal values, that it is a technical language and is, by and large, unproblematically, univocal in its application. Despite the linguistically dubious nature of the assumptions regularly made by formalistic (deductive) theories of adjudication, lawyers and legal theorists have successfully maintained a superb oblivion to the historical and social features of legal language, and rather than studying the actual development of legal linguistic practice, both spoken and written, have asserted deductive models of law application in which language is the neutral instrument of purposes peculiar to the internal development of legal regulation and legal discipline. What has been consistently excluded from the ambit of legal studies has been the possibility of analysing law as a specific stratification or "register" of an actually existent language system, together with the correlative denial of the heuristic value of analysing legal texts themselves as historical products organised according to rhetorical criteria.

DOI: 10.1007/978-1-349-11283-8_1

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