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MISFIRES OF CROSS-CULTURAL LEGAL COMMUNICATION IN THE PERSPECTIVE OF J. AUSTIN AND J. LANGSHAW AUSTIN

2010; De Gruyter; Volume: 4; Linguagem: Inglês

10.14746/cl.2010.4.3

2391-4491

Sergey KOROLEV,

European and International Law Studies

The article is meant to serve both theory and practice in the cross-roads area where legaltheory meets linguistic philosophy. The legal perspective is represented by the famous commandtheory of John Austin, who is often regarded as the founding father of anglo-american branch oflegal positivism. The linguistic perspective is represented by the speech acts theory elaborated byJohn Langshaw Austin.It is argued that the command theory is only of marginal use for any process of crossculturallegal communication. The reason behind this argument is that the command theory isgrossly reductionist in its nature (―colonel – lieutenant‖) and cannot therefore embrace a trilateralreality of cross-cultural legal communication (speech originator – interpreter – audience). But theimperative theory may be useful if applied to ―misfires‖ of the whole process of legal oraltranslation. By transforming the said trilateral reality to any dichotomy in the sense of the commandtheory, i.e. by bracketing together any two of the said agents and by insulating the third one- weinevitably arrive at some sort of ―misfire‖ or even collapse of the whole procedure. Further thecommon view is challenged that the only source of such ―misfires‖ lies in poor quality ofinterpretation. It is argued that both the speech originator and even somehow inadequate audiencemay share the final failure.The eventual outcome of the article may be described as an attempted synthesis of thespeech acts theory of John Langshaw Austin and sociology of law as elaborated by Germanprofessor Werner Krawietz. The interdisciplinary approach to discussed ―misfires‖ of cross-culturallegal communication resulted in formulating a series of bilateral rules, which are obligatory both for the speech originator and the interpreter if the most unacceptable ―misfires‖ of legal oraltranslation are to be avoided.