Move Analysis of Legal Justifications in Constitutional Tribunal Judgments in Poland: What They Share and What They Do Not

Abstract

It appears that we know surprisingly little about how judges frame linguistically the rationale behind their decisions and how such texts are structured. Using the concept of rhetorical moves (Swales in Genre analysis: English in academic and research settings, Cambridge University Press, Cambridge, 1990; Bhatia in Analyzing genre-language use in professional settings, Longman, London, 1993, Worlds of written discourse. A genre-based view, Continuum, London, 2004), this paper adopts a genre-based approach to examine the rhetorical structure of legal justifications provided in the decisions of the Polish Constitutional Court (Trybunał Konstytucyjny). The goal of the study is to verify the claim that the way justifications are drafted is becoming more and more uniform and conventional. The results show that there is a common core of rhetorical structure realized by means of recurrent functional segments of text. This paper proposes a prototypical move structure of a Constitutional Tribunal justification and it argues that that the way justifications are drafted are subject to very concrete, even if not explicitly stated constraints.

Retoryka i dyskurs sędziowski – o relacji koncesywności w uzasadnieniach wyroków

“…Z kolei językoznawcy i analitycy dyskursu badający komunikację prawniczą -pisemną i ustną -zadają pytania o pragmatyczne aspekty procesu argumentowania, w tym modele interakcji, cechy gatunkowe, strukturę retoryczną czy gramatyczno-leksykalne składniki argumentacji, a ponadto o kontekst, w jakim osadzona jest ta argumentacja (por. : Feteris 1996: Feteris , 2017Grabowski 1999;Rzeszutko 2003;Goźdź-Roszkowski 2017, 2020Dahlman, Feteris 2017).…”

The Role of Culture in Legal Languages, Legal Interpretation and Legal Translation

“…Lastly, in this part of this essay, it is necessary to dedicate some space to the question of how judicial discourse can reflect the culture of a given justice system. According to Gozdz-Roszkowski, it can be argued that legal justifications understood as the reasons and rationale given by courts in rendering their decisions reflect "the disciplinary and organizational culture of a given justice system" [16]. Their actual linguistic manifestations may differ radically.…”

“…Judges rely on their individual writing style, various argumentation and reasoning skills to justify the outcome of cases, which seems to be particularly true for constitutional court judgments where judges set out to scrutinize the constitutionality of a wide range of legislative instruments [16]. In the common law tradition of judicial writing, puns, humour, metaphoric expressions and literary flourishes can be found across justifications of judgments handed down [16]. The civil law tradition favours a collective judgment cast in stylized, impersonal language [17].…”

“…The civil law tradition favours a collective judgment cast in stylized, impersonal language [17]. However, even within the civil law tradition, one might expect a varying degree of latitude judges can exercise when drafting their legal justifications [16]. In the case of Polish Constitutional Tribunal justifications, the way of drafting is subject to very concrete constraints, and there is a common core of rhetorical structure realized by means of recurrent functional segments of text [16].…”

“…However, even within the civil law tradition, one might expect a varying degree of latitude judges can exercise when drafting their legal justifications [16]. In the case of Polish Constitutional Tribunal justifications, the way of drafting is subject to very concrete constraints, and there is a common core of rhetorical structure realized by means of recurrent functional segments of text [16]. By way of digression, it is interesting to note that, due to their persuasiveness (convincing the reader that a given decision was rational and correct) and educational functions, legal justifications can be capable of raising the legal culture and legal awareness of a society.…”