THE ROLE OF LANGUAGE IN LAW

the law - main ingredient

language – tool for understanding the legal process and the workings of that system

a vehicle for understanding the legal process and the workings of the legal system

THE THREE BASIC FUNCTIONS OF LANGUAGE (its uses; its purpose; what it does)

1. Informative – essentially the communication of information

- Affirms or denies a proposition

- Used to describe the world or reason about it (occurrence or non-occurrence of a
state of affairs and/or its implications)
- Have a truth value (either true or false)
- Denotation such as dictionary meaning

2. Expressive – reports feelings or attitude (writer, speaker, subject) or evokes feelings

(reader, listener)

- Neither true nor false

- Connotation, that is, denotation plus suggestion or meaning attached to the word

3. Directive - used for the purpose of causing (or preventing) overt action.

- Used in commands and requests

The three basic functions are not mutually exclusive. In ordinary discourse,
functions are mixed for clarity, ease of expression and affect.

OTHER USES OF LANGUAGE

1. Ceremonial ( also ritual language) – may include not only expressive and directive but
also performative aspects
2. Performative utterance – language which performs the action it reports (“ I do.”)
3. Phatic - "Elevator talk" and street-corner conversations accomplishing a social task (“Hi,
how are you?” versus a nod or wave of hand).
 It is important to differentiate the functions of language because the correct
evaluation of a passage requires knowledge of the functions relevant to the
context.

1. Informative Function

For example, when giving a legal basis, the provisions of the law are often quoted verbatim so
as to be unequivocal about the truth sought to be expressed (informative). In law, the truths or
thoughts of the reality (of a case or context) must be in conformity with the Law on Evidence
which “provides a set of logical truths on the admissibility of testimonies and exhibits in
evidence, their credibility and their overall sufficiency in proving one’s case” (Cambray, 2014.)

THE LAW ON EVIDENCE

The study of the law on evidence involves two aspects:

a. Determining the admissibility of the evidence, and

b. The proper presentation of the evidence so that the court will consider it in deciding the
case.

Admissibility of Evidence (Sec. 3, Rule 128, RRC)

Admissibility of evidence is determined by:

i. Relevancy, and

Evidence is relevant when it “has such a relation to the fact in issue as to induce belief in
its existence on non-existence. Evidence on collateral matters shall not be allowed,
except when it tends in any reasonable degree to establish the probability or
improbability of the fact in issue.” (Sec. 4, Rule 128, RRC).

ii. Competency

Evidence is competent when it is not excluded by the law or the Rules on Evidence. For
example, a three year old is not considered competent to testify in court.

Proper presentation of evidence

Evidence is properly presented when it follows the rules on presentation of evidence. For
example, the Judicial Affidavit Rule (A.M. No. 12-8-8-SC) requires the submission of judicial
affidavit that contains the witness’ written direct testimony.
“Section 2.  Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies.  - (a) The parties shall file
with the court and serve on the adverse party, personally or by licensed courier service, not later than five
days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and
incidents, the following:

(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses'
direct testimonies; and

(2) The parties' documentary or object evidence, if any, which shall be attached to the
judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant or
the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant.

(b) Should a party or a witness desire to keep the original document or object evidence in his
possession, he may, after the same has been identified, marked as exhibit, and authenticated,
warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a faithful
copy or reproduction of that original. In addition, the party or witness shall bring the original
document or object evidence for comparison during the preliminary conference with the attached
copy, reproduction, or pictures, failing which the latter shall not be admitted.

This is without prejudice to the introduction of secondary evidence in place of the original when allowed by
existing rules.”

2. Expressive Function

Aside from informing, language is also used to convey emotion. In affective

communication, words with emotive meaning (positive or negative) are often used.

Particularly in the legal profession, rhetoric (shaping the attitudes of other people
through language) is widely used to persuade the other party (in negotiation) when there is a
disagreement in attitude. Disagreement in attitude exists when there is an emotional
difference between the parties, that is, the parties do not agree on the approval or disapproval
about the matter a t issue.

In litigations however, the issue is focused on disagreement in belief. There is a

disagreement in belief when the statements have a different literal significance, that is, there is
disagreement about the facts of the matter.
Exercise:

A. Consider the following four situations concerning "The Distance to

the Sun."
    Mr. Smith The sun is incredibly far from the earth;
it’s 60 million miles away.
Situation 1
    Ms. Smith Yes, the sun is extremely far from the
earth, but it’s 90 million miles away.
    Mr. Jones The sun is not so far; it’s only 93 million
miles away.
Situation 2
    Ms. Jones The sun is, indeed, very far since it’s 93
million miles away.
    Mr. Baker The sun is very far since it’s 90 million
Situation 3 miles away.
    Ms. Baker Yes that is very far, indeed.
    Mr. Cade The sun is really very close to earth, only
60 million miles.
Situation 4
    Ms. Cade No, the sun is incredibly far away; it’s
over 93 million miles from earth.

To settle disagreements, the following rules would be helpful:

1. Find the fact at issue.

2. Determine each party’s emotive significance toward the fact at issue.
3. Determine the agreement or disagreement in attitude.
4. Attempt to resolve the dispute in accordance with the kind of dispute it is.

      a. If there is a disagreement in belief, then use the methods of finding the facts in a
mutually agreeable manner: authority, science, or observation.
      b. If there is a disagreement in attitude, then the methods of rhetoric and persuasion
might be helpful. This variety of disagreement is the most difficult to resolve.
      c. If there is a disagreement in both attitude and belief, then resolve the
disagreement in belief first.
        (1) Finding the facts might help shape a change in attitude, since one or both of
the parties might have been basing the attitude on what they believed.
        (2) If the discovery of the facts does not bring the parties to agreement in
attitude, then various methods of rhetoric and persuasion can be tried.
 (https://philosophy.lander.edu/logic/disagree.html)

III. Analysis of "The Distance to the Sun" examples. These examples exhibit the four possible
kinds of agreement and disagreement in belief and attitude.
  Belief Attitude
How the Dispute Might Be
(in a state of (toward that state of
Resolved
  affairs) affairs)
Disagree (90 mm Agree ("incredibly" and Find the facts: use a reference
Situation 1 vs. 60 mm) "extremely") book, an authority, or do an
(Smith) experiment to determine the fact
at issue.
Agree  Disagree ("not so far" Use rhetoric and persuasion,
Situation 2
(93 mm) and "very far") comparative arguments, relative
(Jones)
terms.
Situation 3 Agree  Agree  No resolution necessary.
(Baker) (90 mm) ("very far")
Disagree (60 mm Disagree ("very close" (1) Find the facts.
Situation 4
vs. 90 mm) vs. very far") (2) Methods of rhetoric and
(Cade)
persuasion.

Evaluation. Using the functions of language, do the following:

Group 1. Make an appeal to the public to practice social distance to prevent the spread of the
Novel Corona Virus.

Group 2. Read on the pending case against Trillanes, Delima, Alejo, et al. for Conspiracy to
Commit Sedition. Analyze the information. Using the basic functions of language, formulate the
respective syllogism (theory of the case) for the prosecution and the defense.

For Groups 3, 4, and 5.

In each of the following disputes (1) state the fact at issue, (2) identify the emotive significance
as being positive, neutral, or negative, (3) identify the kinds of agreement or disagreement
present, and (4) tell how the dispute might best be resolved.
 a. Juan: Mr. Trillianes is a traditional politician who does not have the tact to know when
to give up.
Maria: No, Mr. Trillianes is an enthusiastic citizen who always goes the extra mile.

Fact at issue:  

Juan’s emotive significance:  

Maria’s emotive significance:  

Belief:  

Attitude:  

How best resolved:  

b. Juan: In the last election Mr. Ferdinand ‘Bongbong’ Marcos failed to receive the number
of votes he predicted--he fell short.
Maria: Well, Mr. Ferdinand ‘Bongbong’ Marcos thought he would receive 56% of the
vote and he came within 1%.

Fact at issue:  

Juan’s emotive significance:  

Maria’s emotive significance:  

Belief:  

Attitude:  

How best resolved:  

c. Juan: Like most politicians, President Duterte is a braggart and a dishonest man.
Maria:  In my opinion, he is a modest gentleman and is incorruptibly honest.

FACTS: Does President Duterte normally speak in accordance with the circumstances?

Fact at issue:  
Duterte is a politician since 1986 where he was initially appointed as the Vice Mayor of
Davao City. He was elected as Mayor of the City in 1988. He was re-elected twice over
the subsequent decade but because of term-limit restriction, he was barred from
seeking reelection thereby leading him to run as a member of the House of
Representatives in 1998. Upon the completion of that term in 2001, he returned to
Davao City and was once more elected mayor. Because the term-limit restriction again
came into force in 2010, he was elected vice mayor, and his daughter Sara served as
mayor. In 2013, Duterte returned to the mayor’s office, this time with his son Paolo
(“Pulong”) serving as vice mayor. During his more than two decades as mayor of Davao
City, the controversial politician transformed the city from a haven of lawlessness into
one of the safest areas in Southeast Asia. Duterte’s harsh crime-fighting tactics earned
him the nicknames “the Punisher” and “Duterte Harry” (in reference to the film
character Dirty Harry, the ruthlessly effective police inspector portrayed by actor Clint
Eastwood), but critics such as Amnesty International and Human Rights Watch claimed
that Duterte was responsible for more than 1,000 extrajudicial killings. Rather than
denying such allegations, he embraced them. The death squads that had carried out the
killings operated with an impunity that implied official sanction, and Duterte openly
praised both their methods and their apparent results. In that way he cultivated the
image of a coarse pistol-toting vigilante in the months leading up to the presidential
election. His antiestablishment message took hold among a Filipino public weary of
official corruption, and his brash over-the-top rhetoric led to comparisons of him to U.S.
Republican presidential hopeful Donald Trump.

On June 30, 2016, Duterte was inaugurated as President of the Philippines. In his first
six months in office, more than 6,000 people were killed in Duterte’s “war on drugs.” A
fraction of those deaths occurred during police operations. The overwhelming majority
were extrajudicial killings by death squads. Metro Manila’s funeral parlours were
strained beyond capacity, and hundreds of unidentified or unclaimed bodies were
interred in mass burials. Human rights organizations and Roman Catholic officials spoke
out against the bloodshed, but Duterte responded by accusing the church of corruption
and the sexual abuse of children.

When Western governments expressed concern over the rampant vigilantism, Duterte
said that the West could offer the Philippines only “double talk,” and he sought to
strengthen ties with Russia and China. The United States had suspended the sale of
26,000 assault rifles to the Philippines as a result of the human rights abuses, and in
May 2017 Duterte met with Russian Pres. Vladimir Putin to discuss the prospect of an
arms deal. While Duterte was in Moscow, a series of deadly clashes erupted
in Marawi between Filipino troops and Islamist fighters linked to the Islamic State in Iraq
and the Levant (ISIL; also called ISIS). Duterte cut short his trip and declared a state
of martial law covering the entire island of Mindanao. Although government forces
retook Marawi and quashed the rebellion, the declaration was renewed through the
end of 2019, making it the longest period of martial law in the Philippines since the
Marcos era.
 Duterte remained widely popular with the Filipino public, however, and voters in May
2019 delivered a resounding endorsement of the president’s agenda by backing a slate
of pro-Duterte candidates. Duterte maintained his hold on the House of
Representatives, and, by taking control of the Senate, he removed what was the only
effective check remaining on his administration.

Source: (Author: Michael Ray, https://www.britannica.com/topic/Rodrigo-Duterte)

JUAN’S EMOTIVE SIGNIFICANCE: The words “politicians, braggart, and dishonest” indicative
negative emotive significance. Juan’s perception is based on the negative stereotyping of
politicians and he believes Duterte’s attitude is not different to them.

MARIA’S EMOTIVE SIGNIFICANCE: Maria used the words, “gentleman, modest, honest” and so
her emotive is slanting towards positive. Maria’s perception is based on her personal opinion
and she believes Duterte’s attitude is positive or favorable.

BELIEFS: The parties disagree in belief as to whether President Duterte is normally truthful in
his speech.

ATTITUDE: The parties also disagree in attitude since Juan’s slant is negative and Maria’s slant is
positive.

HOW TO BE RESOLVED:
1. Find the facts – Is President Duterte normally straightforward?
2. After the facts are established, either the attitudes will change or rhetorical and
persuasive techniques can be used.

ILLUSTRATION OF Belief / Attitude / How best resolved:  

  Attitude
Belief How the Dispute
  (toward that state of
(in a state of affairs) Might Be Resolved
affairs)
Disagree (“braggart and Disagree (“Like most (1) Find the facts.
Situation
dishonest” vs. “modest gentleman politicians” vs. “In my (2) Methods of
(Juan &
and incorruptibly honest”) Opinion") rhetoric and
Maria)
persuasion.

How best resolved:  

 If there is a disagreement in both attitude and belief, then resolve the disagreement in
belief first.
(1) Finding the facts might help shape a change in attitude, since one or both of the
parties might have been basing the attitude on what they believed.
(2) If the discovery of the facts does not bring the parties to agreement in attitude, then
various methods of rhetoric and persuasion can be tried.
(https://philosophy.lander.edu/logic/disagree.html)