Argumentation

DOI 10.1007/s10503-007-9020-8

Springer 2007

The Construction of Argumentation in Judicial Texts:

Combining a Genre and a Corpus Perspective
DAVIDE MAZZI
University of Modena and Reggio Emilia
L.go St. Eufemia, 19, Modena, 41100, Italy
E-mail: mazzi.davide@unimore.it

ABSTRACT: Research on legal discourse has developed according to a variety of

perspectives. As for descriptive accounts, two approaches are noteworthy. Firstly,
Anglophone scholars have dealt with legal language from a genre-based viewpoint.
Secondly, French studies have focused on argumentation in judicial texts, by considering
the forms of reasoning involved in it and, albeit more rarely, its linguistic constituents.
This paper aims at reinforcing the linguistic component of the analysis of legal discourse,
by carrying out a corpus-based genre analysis on a sample of 40 judgments. First of all,
the results of the investigation of the genre structure of judgments will be presented. The
comparative approach adopted will show that the dierences between European and
English/Irish judgments mainly concern the generic move Arguing the case. Secondly,
analysis will concentrate in more detail on one of the most frequent tools used in the
discursive construction of argumentation within the aforementioned move, i.e. the widely
spread reporting verb HOLD. A study of its concordances suggests that it is used in all
types of judgments as a meta-argumentative operator signalling either an authoritative
stance taken by the Court or an equally authoritative reported argumentation of another
judge or court.
KEY WORDS: corpus, genre, judicial argumentation, proponents argumentation,
reported argumentation, reporting verbs

1. INTRODUCTION

In the last two decades, research on legal discourse has developed

according to a variety of perspectives. As for descriptive accounts,1
two approaches appear to be noteworthy. To begin with, Anglophone
scholars have dealt with legal language from a predominantly genrebased perspective. Following Swales (1990, p. 58), genre has been
dened as a set of communicative events characterised by common
communicative purpose and parent discourse community as well
shared structure, content, style and intended audience. Maley (1994)
identies a variety of genres embedded in legal discourse, e.g. acts
of parliament, judgments, wills, lawyer-client and lawyer-lawyer
consultation.
In a wide range of analytical contributions, scholars have
been focussing on specic genres, thus casting light on distinctive com-

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municative requirements set out for each of them by the discourse

community that governs their production. For instance, Bhatia (1993)
analyses lexico-grammatical patterns in legislative provisions and the
generic structure of cases, clarifying why the genre he examines takes
its distinctive shape, namely why textual exemplars instantiating it are
written the way they are.
Applied genre studies are most soundly carried out, when they seek
to relate structural analysis exploring the moves through which genres
are textually designed with a ner-grained study of the lexico-grammatical tools contributing to the realisation of moves themselves. The
latter can be achieved by means of the various tools of corpus linguistics, which allow researchers to highlight the semantic, syntactic and
functional properties of words and phrases in real language (cf. Sinclair,
1991; Biber et al., 1998; Hunston, 2002). Rather than focussing on mere
formal properties of language, corpus tools may indeed foster discourse
research on form-function correlations, whereby the use of specic
linguistic elements is related to the wider institutional, professional or
social context in which they occur.
The other descriptive approach that is noteworthy is represented by
French studies concentrating most of all on a central dimension of judicial texts, i.e. argumentation. On the one hand, Mathieu-Izorche (2001)
and Vannier (2001), two scholars operating in the eld of legal logic,
examine some common forms of arguments aecting legal interpretation, e.g. deductive arguments instantiated by syllogisms. These works
deserve recognition, because they provide in-depth descriptions of how
the judicial decision-making process is constructed through reasoning.
On the other hand, much of the work by Bourcier and Bruxelles is
centred on the linguistic constituents of argumentative discourse within
judicial texts: for example, the authoresses describe the use of cest-a`dire [that is to say] in French Supreme Courts decisions (1995). They
draw on the theoretical background of legal logic the notion of judgments as argumentative discourse eliciting the reasons on which
action, namely the pronunciation of the verdict, is based. Still, their
approach is a linguistic one, because they are more interested in the
semantic processes that underlie the formulation of judicial statements
than in the validity of arguments. In this respect, therefore, Bourcier
and Bruxelles stress the reformulation and inference operations
performed in the judicial text through cest-a`-dire, whose occurrence
often signals that judges do not merely paraphrase an utterance/clause
for the purpose of clarifying it, but rather in order to provide for the
basic reasons underlying their decision.
Signicantly, Bourcier and Bruxelles (1995, p. 56) argue that studies
which strive to deal with the linguistic structuration of judicial argumentation are still lacking:

CONSTRUCTION OF ARGUMENTATION IN JUDICIAL TEXTS

Les travaux sur largumentation se rejoignent sur un meme presuppose : largumentation est toujours consideree comme exterieure a` la langue. Les travaux sur les
classes darguments ne sont jamais fondes sur des crite`res linguistiques.
The works on argumentation are unified by the same assumption: argumentation is
always considered as external to language. The works on the classes of arguments
never rest on linguistic criteria [My translation]

In the light of this, this paper tries to reinforce the linguistic component of the analysis of legal discourse, by calling for a corpus-based
genre analysis on a sample of 40 judgments. Its aim is therefore to
study the argumentative discourse of judicial decisions, by combining
the perspectives of genre and corpus analysis. This will enable both to
single out the generic structure of the judgments considered, and to
concentrate on the more argumentative move of it, i.e. Arguing the
case, across courts. From this last point of view, HOLD, one of the
most frequent linguistic tools distinctively signalling its realisation, i.e.
reporting verbs, will be studied through concordances (Sinclair, 2004),
in order to comparatively highlight its semantic and syntactic patterns
as well to suggest relevant functional shades of its use in the context
of the respective courts.
2. MATERIALS AND METHODS

The analysis was carried out on a small corpus of 40 judgments, 20 of

which were delivered by the Court of Justice of the European Communities, and ten by the House of Lords (UK) and Irelands Supreme Court
respectively. The corpus amounts to 425,502 words, and it was designed
according to two basic criteria: rst of all, three courts of last instance
were chosen, in order to ensure the homogeneity of corpus data and at
the same time provide for a comparative2 framework provided by the
inevitable dierences among jurisdictions (European, English and Irish)
and legal systems (EC v. Common Law).3 Secondly, the corpus only
includes judgments issued in the rst six months of 2003.
The small corpus was randomly drawn from a larger reference corpus of 221 judgments (1,646,502 words) that had previously been created along the same guidelines. The smaller corpus
whose
mechanism of compilation is illustrated in Mazzi (2005, forthcoming
a)
was preferred to it, because its more reduced scale renders it a
more manageable tool for the purpose of the present analysis. However, the larger corpus was constantly kept as a reference, in order to
cross-check any claims formulated through the more detailed qualitative analysis of small-corpus data.
Turning to methodology, the study could be sub-divided into two
major parts. First of all (section 3.1), an overview of the generic structure of judgments will be provided. The moves of which the structure

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of each type of judgment is composed will therefore be singled out following Bhatia (1993): the dierences noted here will show in what
respects the corpus can be viewed as a collection of texts instantiating
two related and yet distinct sub-genres, i.e. European v. Common Law
judgments.
Secondly (section 3.2), the focus will shift to a specic move,
namely Arguing the case. As the name itself suggests, this is the most
inherently argumentative move of judgments: there, the arguments of
the parties and other courts are discussed, and the judge draws up
the reasoning sustaining the conclusion announced afterwards. The
combination of manual, i.e. non-automated, textual reading and the
computer-assisted study of frequencies highlights that reporting verbs
are one of the most widely spread tools for the discursive formulation of judicial arguments. These are verbs like BELIEVE, CLAIM
and ARGUE used in particular to introduce a statement, by attributing it to someone else as the current writer or speaker, but also to
express self-references (see I think that...). In the case of judgments,
the remarkable spread of reporting verbs within Arguing the case is
explained by the fact that in that move, both reported arguments by
the parties or other courts from inferior degrees of the jurisdiction,
and the judges own arguments are presented.
By virtue of its high frequency, which renders it a representative
example of reporting verbs, a corpus-based case study of HOLD will
be conducted.4 The analysis of concordances will provide for clues to
the semantic patterns in which the verb is involved throughout the
corpus. Moreover, the prevailingly meta-argumentative use of HOLD
will be considered with respect to both its syntactic constructions and
the voices it is used to elicit in judicial texts. As regards this aspect,
the various subjects that hold in court that something is in a certain
way will be categorised in terms of either proponents (Plantin, 1996,
1999, 2005) or reported argumentation (Bondi, 1998, 1999). This
in-depth analysis of HOLD is of signicance, because it completes
genre analysis (cf. section 1), by providing an illustrative example of
the advantages oered by corpus tools in the semantic and syntactic
description of linguistic elements acting as discursive signals ofArguing
the case, particularly when combined with a broader evaluation of
their overall functional implications (see section 4).
It will thus emerge that Common Law and European judgments
differ not only in the respective generic structure, but also in the use
of a recurrent reporting verb like HOLD. In fact, even though this
verb is mainly employed as a meta-argumentative operator throughout
the corpus, it is more likely to signal an authoritative stance taken by
the Court itself in EC judgments, whereas it more often introduces
reported judicial statements in Common Law judgments.

CONSTRUCTION OF ARGUMENTATION IN JUDICIAL TEXTS

3. RESULTS

3.1. A genre analysis of judgments: Communicative purpose, structure and

discourse community

In his seminal work on genre analysis in professional settings, Bhatia

(1993) devotes a chapter to legal discourse. In particular, he tackles
the genre of common law cases in a fairly detailed manner. In the rst
place, he discusses their communicative purposes. Thus, for instance,
he notes that judgments serve as faithful records of all facts of a case,
the judges arguments, his reasoning and the verdict he arrives at; they
stand as precedents for subsequent cases, and are generally used as
evidence in favour of or against a particular line of argument or decision (Bhatia, 1993, p. 119); they are intended to act as reminders to
legal experts who avail themselves of them both in courtroom and in
the classroom; and they illustrate certain points of law relevant to law
students curricula.
In the second place, Bhatia argues that cases typically have a fourmove structure, which he illustrates through the prototypical example
of Roles v. Nathan [1963]. The four moves, through which cases meet
the communicative purposes recalled above, are Identifying the case,
Establishing facts of the case, Arguing the case and Pronouncing judgment. In Identifying the case, the title of it is presented by citing the
names of the parties separated by a v. standing for versus, and further
information are provided: the type of case, the court it was tried in
and the year of its delivery or reporting. In Establishing facts of the
case, the circumstances which gave rise to the dispute are described in
detail, because the basic rule of the common law system is that cases
in which legally material facts are the same must be decided alike.
Arguing the case is the most important move of the whole structure,
and it is articulated into three sub-moves: Stating history of the case,
when the judge goes through the previous stages followed by proceedings before he/she was called upon to deal with them; Presenting arguments, in which the judge draws up his/her line of argument by taking
relevant provisions and precedents into account; and Deriving ratio
decidendi, as the judge nds out the principle of law which he intends
to lay down for both the case in question and subsequent similar
cases.
In Pronouncing judgment, nally, the judge states how the dispute
between the parties is settled. Bhatia (1993, p. 136) points out that this
kind of generic structure should be retained with a degree of exibility,
because some cases may have a very brief realisation of one or more
moves, while others very detailed ones. Moreover, some cases may
not have all three sub-moves of which Arguing the case is composed;
in fact, non-appeal cases are typically devoid of Stating history of the

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case, and judges may sometimes decide not to lay down any particular
ratio decidendi.
Bhatias model was taken as a standard reference, in order to
re-construct the generic structure of the three types of judgments
included in the corpus. The careful reading of all corpus texts reveals,
on the one hand, that English and Irish judgments share the generic
structure reported below:
Identifying the case
Establishing facts of the case
Arguing the case
Stating history of the case
Identifying the conict of categorisation
Presenting arguments
Deriving ratio decidendi
Pronouncing judgment

This structure is close to Bhatias model in that it also features the

four main moves Identifying the case, Establishing facts of the case,
Arguing the case and Pronouncing judgment. However, it distances itself from it, since Arguing the case is sub-divided into four rather than
three sub-moves.
Identifying the conict of categorisation is introduced here; even
though it will not be tackled in this paper,5 it may be anticipated that
through that move the judge explicitly acknowledges that his categorisation of the facts of the case, i.e. his interpretation of them under the
appropriate pre-determined legal category (e.g. murder v. manslaughter), clashes with an alternative categorisation proposed by other subjects such as the representatives of a party in the dispute, another
judge of the same bench or another court of the jurisdiction.
On the other hand, EC judgments appear to be characterised by the
slightly different generic structure reproduced below:

Identifying the case

Identifying the scope of proceedings before the Court
Retrieving relevant Community and/or national legislation
Stating history of the case
Arguing the case
Arguments of the parties
Arguments of the Court

Settling costs
Pronouncing judgment

CONSTRUCTION OF ARGUMENTATION IN JUDICIAL TEXTS

Even if European judgments are on average shorter than English

and Irish ones, they are nonetheless articulated into more moves. For
instance, a section of judgments is devoted to the identication of the
scope of proceedings before the Court in terms of ,when did who
bring what action against whom, and before judgment is pronounced,
the Court decides who is to bear costs. Moreover, a peculiarity of
European judgments lies in the Courts accurate retrieval of relevant
legislation at both a Community and a Member State level: this move
is all the more important when the dispute is considered to centre on
an alleged incompatibility between EC law and national legislations.
In addition, it is noteworthy that Arguing the case is realised more
briey than in English and Irish judgments, because it is limited to a
summary of the parties opposed lines of argument followed by the
Courts own argumentation. As the work hinted at in footnote 5 is intended to show, this does not necessarily mean that the other submoves inserted into the generic structure of English and Irish judgments above are absolutely absent. In fact, Stating history of the case
simply precedes Arguing the case instead of being part of it; the derivation of ratio decidendi, if present, is condensed into the Courts
arguments; and even more importantly, conicts of categorisation are
undoubtedly present, but they are neither thematised by the Courts
discourse nor explicitly acknowledged on the surface of text.
Apart from these remarks, however, the characteristics of the two
generic structures above seem to point to the following observation.
English/Irish and EC judgments both belong to the judicial genre,
because they are both governed by the discourse community
(Swales, 1990, p. 9) of judges, whose communicative purpose is to settle a dispute by presenting well-founded arguments in support of a
judicial conclusion through which a number of more or less controversial facts are interpreted within the framework of a valid legal order.
In this respect, an effective representation of the judicial discourse
community is given by Vannier (2001) in the context of a State/political-territorial entity ideally governed by a democratic rule of law:
tat de droit [State governed by the rule of law]
Lgislateur [Legislator]
Parties au procs [Parties in the dispute]
Opinion publique [Public opinion]

Cours Suprmes [Supreme Courts]

Premiers degrs de juridiction [First judicial degrees]

In a circular process illustrated by the arrows, the rule of law

on which the State rests provides citizens with a fair normative
framework. When citizens become parties in a dispute, they rely on
the provisions of the rule of law, in order to address the rst degrees

DAVIDE MAZZI

of the jurisdiction magistrate courts, courts of appeal and the like

for the purpose of having their interests safeguarded.
The rulings of these judicial subjects do not only affect the parties,
because they are conceived in a way that involves Supreme Courts as
well: the parties may eventually decide to put forward their reasons to
those courts of last instance, which could reverse previous decisions by
virtue of their right to have the last word on the issues raised before
them. In turn, the verdicts of Supreme Courts are meant to settle the
dispute with a view to a multi-faceted public opinion including the
parties, their legal representatives, judges from lower courts and other
professionals trained in the law, and, at least as far as delicate social
or ethical questions are concerned, society at large.
The public opinion has then the power to react to Supreme Courts
rulings through its vote, by leading the legislator to introduce changes
to the normative framework within which the whole of the judiciary
operates. Finally, the legislator acknowledges the public opinions
demands and adopts the necessary measures affecting the rule of law
on which the State grounds. And so the circle closes and starts again.
In spite of the differing legal systems (Common Law and EC law), the
function of both House of Lords/Irelands Supreme Court and the EC
Court can be reconciled with the role attributed to Supreme Courts in
Vanniers model. The discourse community English/Irish and EC judges
belong to is thus uniformly responsible for the genre of judgments,6 a set
of communicative events through which it argues for the more appropriate interpretation and application of the law as the whole of the rules
of conduct inducing the orderly human society (Bobbio, 1988, p. 11).
Yet, the differences noted above between the two generic structures
suggest that it is appropriate to talk about two sub-genres: Common
Law judgments (i.e. English and Irish ones) on the one hand, EC
judgments on the other. This conceptual and terminological distinction
between sub-genres will be retained in the next section of the paper,
when the specicity of each sub-genre is investigated with regard to
the discursive construction of the judges/courts argumentation within
the move Arguing the case.
3.2. The discursive construction of judicial argumentation in Arguing the
case: A case study of HOLD

In section 3.1, it has been observed that structural differences between

EC and Common Law judgments concern both the overall number
of moves and the specic realisation of some of them, in particular
Arguing the case. From an argumentative point of view, this is the
most interesting part of judgments, because judges consider the arguments of the parties or other courts, and they construct their own reasoning in order to settle the dispute before them.

CONSTRUCTION OF ARGUMENTATION IN JUDICIAL TEXTS

The reading of corpus texts as well as the computer-assisted scrutiny of frequency lists reveal that one of the main tools characterising
the discursive realisation of Arguing the case is the lexico-grammatical
category of reporting verbs. These have been extensively investigated
in academic discourse. For instance, Thompson and Yiyun (1991) see
reporting verbs as an important lexical signal of evaluation in academic papers, and they pay particular attention to the ways in which
writers commit themselves to or detach themselves from the reported
proposition to varying degrees. Moreover, Thompson (1996) and
(2001) shows that reporting verbs act as linguistic resources signalling
the interaction of voices above all writer and reader in the text.
As far as judgments are concerned, it appears that reporting verbs
serve the two-fold purpose of either introducing arguments, by attributing them to sources other than judges themselves
i.e. the parties
or other judges/courts
or of prefacing forms of judicial self-attribution (e.g. I think that...).
Among the most frequent reporting verbs employed in Arguing the
case, HOLD is prominent with its 388 corpus occurrences. Therefore,
this section is devoted to an in-depth case-study of it as a typical
linguistic marker of the generic move where judicial argumentation
mostly unfolds.
To begin with, a variety of semantic patterns could be associated
with HOLD; in order to proceed to an adequate meaning identication of the verb, the whole of its concordances in the small corpus
were studied in detail. The semantic categories identied were then
formalised according to the entries provided by the Oxford English
Dictionary (Simpson and Weiner, 1999). The results of this stage of
the research are displayed in Table 1 below:7
Having a look at gures, it is clear that HOLD is mainly used as a
lexical signal of the development of argumentative discourse in Arguing the case throughout the corpus (65.3, 86.4 and 81.1% in English,
Irish, and EC cases respectively). On the ground of this, HOLD can be
primarily described as a reporting verb, and it will be analysed with
respect to this use in the rest of the paper. Example (1) will provide
insights as to the meta-argumentative function of HOLD reported in
bold in Table 1:
(1) The appellate court held that any reasonable fear by the woman and her husband
that they had acquired HIV was not compensatable as they did not learn
that the physician had AIDS until eight months after the womans cut, at
which time she had undergone two tests which showed her to be HIV negative.
[My Emphasis]
(ISC, Stephen Fletcher v. The Commissioners of Public Works in Ireland)

In (1), held signals that the upcoming that-clause (that any reasonable fear by the woman and her husband [...] was not compensatable) is

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Table 1. Meaning identication of HOLD
HOLD %

HL

ISC

EC

Of a judge or court: To state as an authoritative opinion; to lay

down as a point of law (OED 1999, Vol. VII, p. 297)

65.3

86.4

81.1

To have or keep as ones own absolutely or temporarily; to own,

have as property; to be the owner, possessor, or tenant of; to be in
possession or enjoyment of [...] To possess, have, occupy (a position, oce, quality, etc.) (OED 1999, Vol. VII: 296).
E.g. The task of restructuring and privatising undertakings was
entrusted [...] to a company [...] which also took over the shares in
companies still held by the BvS.

16.6

7.4

13.9

To think, consider, esteem, regard as (OED 1999, Vol. VII: 297).

E.g. In Rivaz v Gerussi Brothers & Co (1880) 6 QBD 222 the
underwriters were held entitled to avoid the policies on account of
concealment of the undervalue of the insured shipments.

17.4

6.2

To keep together, to keep in being, existence, or operation, to

carry on; to convoke and preside over (a meeting, assembly,
council or the like; to go through formally, perform (any proceeding or function) (OED 1999, Vol. VII: 296).
E.g. In a supplemental adavit he requested the appellants return to
the United States so that whatever appropriate proceedings can be
held before the Courts of the State of New York.

0.7

an authoritative statement by the appellate court about the right to

compensation claimed by the one of the parties.
This interpretation of HOLD in the passage raises both a syntactic
and an argumentative question. First of all, what are the constructions
of HOLD, as far as its meta-argumentative uses are concerned? And
in the second place, what are the voices expressed by HOLD in the
argumentative discourse of judges/courts? Or, to put it more simply,
who is entitled to hold in court?
As regards the former, the concordances of HOLD were again
examined in order to identify any regularities in the syntactic constructions of the verb. Table 2 summarises the evidence collected from corpus data in this respect.
Table 2 indicates that in the vast majority of its occurrences (88.3,
81.7 and 91.8% in English, Irish and EC cases respectively), HOLD
introduces a that-clause in which the contents of the important point
of law laid down by the argumentative voice are embedded. Other
forms, such as the direct quotation and the parenthetical construction
of the verb instantiated in the table, are also attested, but they appear
to be less frequent than the that-government noted in (1) as well.
As far as the second question is concerned, the occurrences of
HOLD were reviewed in order to nd out who holds that an issue
should be interpreted in a certain way. Are judges/courts the only

CONSTRUCTION OF ARGUMENTATION IN JUDICIAL TEXTS

Table 2. Syntactic constructions of HOLD
Constructions of HOLD %

HL

ISC

EC

Introducing a that-clause.
E.g. The Court held that the adoption Act 1988
applied to any child...
Other constructions.
E.g. Lord Phillips held: [...]; [...], as the Court
has already held, [...]

88.3

81.7

91.8

11.7

18.3

8.2

subjects, whose argumentative standpoint may be expressed by HOLD

in judicial texts? The overall set of voices connected with the metaargumentative use of the verb as well as their percentage of occurrence
are listed in Table 3 below.
Table 3 should be read from the viewpoint of the judge/court that
drafted the judgment under analysis. Therefore, the entries other courts
or other judges are to be understood as follows: other judges or courts
with respect to the authorial voice of House of Lords/Irelands Supreme
Courts judges and the EC Court respectively. In order not to get lost
amidst the gures reported in the table, the more signicant ones are in
Italics. In Common Law cases, on the one hand, HOLD is mainly used
in order to introduce an authoritative statement by another judge or
court, since the gures of Table 3 for other courts and other judges
account altogether for 60 and 56.4% of occurrences in English and Irish
judgments respectively. This is shown by (1) above, in which the appellate court, and not the Irish judge of the Supreme Court, is responsible
for the judicial opinion introduced by HOLD, but also by (2):
(2) 253. Similarly in Pok Sun Shun v. Ireland [1986] ILRM 593, Costello J. held that
the rights given to the family under the Constitution were not absolute and that the
provisions of the Aliens Act, 1935 and the orders made under it were permissible
restrictions. [my emphasis]
(ISC, Lobe et al. v. The Minister for Justice, Equality and Law Reform)

In (2), the two statements the rights given to the family [...] were
not absolute and the provisions [...] and the orders [...] were permissible
Table 3. Voices of HOLD
Voices of HOLD %

HL

ISC

EC

Other courts
Other judges
The judge in rst person
The court itself
Impersonal constructions
E.g. It was held that...;
It must be held that...
Non-nite forms
E.g. In holding that [...], the Court...

30.6
29.4
10.6
8.2
4.7

9.2
47.2
7.7
1.5
5.6

19.7
0
0
52.4
24.6

16.5

28.8

3.3

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restrictions are attributed to judge Costellos voice through a thatclause governed by HOLD, which therefore acts as a signal of
reported argumentation within the Supreme Court judges discourse.
On the other hand, the function of HOLD in EC cases is principally
to introduce the argumentative voice of the Court itself. This is shown
by the gures associated with both the court itself and impersonal constructions highlighted in Table 3 with reference to the EC Court: the
two entries mentioned altogether describe 77% of the occurrences of
HOLD in the European sub-genre. In (3) and (4) below, the typical
use of the verb in EC judgments is documented:
(3) As regards Article 5(1)(b) of the directive, the Court has already held that that
provision is designed to apply only if, because of the identity or similarity
between the signs and marks and between the goods or services which they
designate, there exists a likelihood of confusion on the part of the public [...].
(EC, LTJ v. Sadas)
(4) In the light of the foregoing considerations, it must be held that, having regard
to the requirement that patent agents, when supplying services, should elect
domicile with an approved agent, and having regard to the fact that the Luxembourg Government did not supply information concerning the precise conditions
for the application of Article 85(2) of the Law on patents and Articles 19 and
20 of the Law governing access to professions, the Grand Duchy of Luxembourg has failed to full its obligations under Article 49 EC and Article 10 EC
respectively. [my emphasis]
(EC, Commission v. Grand Duchy of Luxembourg)

In (3), the Court uses HOLD in order to preface one of the most
important points of law (that that provision is designed to apply only if,
[...], there exists a likelihood of confusion on the part of the public)
upheld by EC judges in prior cases as well as in the one they are
about to settle. Not only does HOLD enable the Court to introduce
an authoritative legal statement, as was the case in (1) and (2) above,
but also to attribute it to its own reasoning on the grounds that the
verb follows the explicit formulation the Court.
In (4), instead, the judicial assertion embedded in the passage, i.e.
that, [...] the Grand Duchy of Luxembourg has failed to full its obligations under Article 49 EC and Article 10 respectively, is not explicitly
attributed to the Court. Yet the impersonal construction it must be
held that can be rightly interpreted as a marker of the Courts own
argumentative voice.
The same may not be claimed with regard to Common Law cases,
in which impersonal constructions are less frequent than in the EC
sub-genre (4.7 and 5.6% in English and Irish judgments respectively),
and they appear to be used with the alternative aim of signalling
reported rather than proponents argumentation, as in (5):
(5) 16. In re Coppin (1866) LR 2 ChApp 47 was such a case. The judgment of which
Coppin had been convicted by a court in Paris in his absence was a conviction

CONSTRUCTION OF ARGUMENTATION IN JUDICIAL TEXTS

par contumace. [...] It was held that Coppin had to be treated as an accused
person for extradition purposes. [my emphasis]
(HL, In Re Guisto)

In this extract, the Law Lord who is expressing his opinion on the
case before the House quotes another case, i.e. In re Coppin, in order
to draw a parallel between the two. In this respect, the central aspect
of In re Coppin is that the defendant had to be treated as an accused
person for extradition purposes; the choice of it was held that as the
construction that governs the clause mentioned signals that the latter
belongs to the reasoning of the French court where Coppin was tried
rather than to the Lords own argumentation. In fact, it was held
that... could be paraphrased as follows: in that court and at that time,
namely as early as (1866), French judges upheld that view.
However, the differences that may be noted between Common Law
and EC cases are not restricted to an overall divergent use of HOLD
in terms of the argumentative voices it is used to elicit and the frequency and use of impersonal constructions. On the contrary, Table 3
also indicates that in EC cases, HOLD is never used in order to introduce statements attributed to other judges or to one of its own judges
speaking in the rst person,8 which accords with the impersonal style
of the EC Courts reasoning as opposed to the individual involvement
of Common Law judges in the judgments they pronounce.9
As regards non-nite forms, furthermore, it appears that they are
more frequently used in Common Law (16.5 and 28.8% in English
and Irish judgments respectively) than in EC cases (a mere 3.3%),
even though they were all observed to be clearly on the side of
reported argumentation throughout the two sub-genres.
In spite of the variety of entries of Table 3, the examples analysed
suggest that an interpretation of the set of voices identied in it with
respect to the use of HOLD could be proposed, by grouping them under two major categories, i.e. proponents (Plantin, 1996, 1999, 2005)
and reported argumentation (Bondi, 1998, 1999).
If, therefore, the judge in rst person, the court itself and impersonal
constructions (for EC cases) can be accounted for under proponents
argumentation, whereas other courts, other judges, impersonal constructions (for Common law cases) and non-nite forms are classied under
reported argumentation, the new categorisation of data is summarised
in Table 4:
Table 4. Categorisation of the argumentative voices of HOLD
Voices of HOLD %

Proponents argumentation

Reported argumentation

HL
ISC
EC

25.9
9.2
77

74.1
90.8
23

DAVIDE MAZZI

The gures in the table suggest that HOLD is a signicant clue to the
generic dierences of Common Law and EC cases. The two sub-genres
thus appear to be characterised by diering realisations of Arguing the
case in terms of the use of specic linguistic elements as well.
The two sub-genres converge in that HOLD is used in both of them
as the linguistic marker of an authoritative judicial statement, on
which argumentation relies. Nonetheless, they are distinct from each
other, because the verb is predominantly used as a signal of reported
argumentation in Common Law cases
74.1 and 90.8% of its occurrences in English and Irish judgments respectively
whereas it more
often acts as a signpost of proponents argumentation drawn up and
advanced by the Court itself in EC cases (77% of occurrences).
4. CONCLUSIONS

This paper has tried to combine a genre and a corpus perspective, in

order to study the construction of argumentative discourse in a collection of authentic texts (judgments) issued by three courts of last
instance, i.e. House of Lords, Irelands Supreme Court and Court of
Justice of the European Communities.
The evidence obtained explains why two sub-genres may be identied within the corpus: Common Law judgments on the one hand, and
EC judgments on the other. First of all (section 3.1), differences
between the two can be noted in terms of genre structure. Notwithstanding the common communicative purposes and parent discourse
community, it has been pointed out, for instance, that the crucial
move Arguing the case appears to be distinctively realised depending
on the sub-genre considered: in Common Law cases, it is articulated
into four sub-moves (Stating history of the case, Identifying the conict
of categorisation, Presenting Arguments and Deriving ratio decidendi),
whereas it only consists in two sub-moves (Arguments of the parties
and Arguments of the court) in EC cases.
In the second place (section 3.2), the focus shifted more specically
to the linguistic structuration of Arguing the case, where judges/courts
draw up a line of argument that eventually leads them to the verdict.
It was argued that reporting verbs are a widely spread lexico-grammatical marker in the discursive elaboration of judicial arguments. In
this respect, HOLD proved a signicant case in point. The semantic
analysis of its occurrences revealed that HOLD is mainly used as a
meta-argumentative operator throughout the corpus, thus acting as a
reporting verb according to the denition spelt out in section 2.
Furthermore, its syntactic construction is uniform regardless of the
sub-genre.

CONSTRUCTION OF ARGUMENTATION IN JUDICIAL TEXTS

The main discrepancies between English/Irish and EC cases with

regard of the usage of the verb are therefore of an essentially functional nature. On the one hand, HOLD principally occurs in Common
Law judges reasoning in order to report authoritative and binding
judicial statements coming from precedents with the aim of reinforcing
the judges own argumentation.
In EC judgments, on the other hand, the inuence of the Continental Civil law tradition is still strong, and the function of HOLD is in
most cases to signal the argumentation of the Court, which attributes
authoritative statements to its own reasoning past or present rather
than to precedents.
Undoubtedly, it comes as no surprise to comparative law scholars
that English/Irish judges draw on precedents as a privileged normative
source, whereas this is hardly the case in the continental European
tradition, where precedents have by denition no binding force
(cf. MacCormick and Summers, 1997). However, the corpus-based
study outlined here integrates their perspective, by shedding light on
the preferred discourse resources through which judges actualise their
institutional practices: in spite of the intuitive closeness between
HOLD and other semantically related verbs such as RULE,10 in fact,
the study points to the centrality of the former as an outstanding
linguistic tool in the construction of judicial argumentative discourse.
This paper was intended to suggest some of the potential guidelines
along which the textual and linguistic analysis of judicial argumentation might develop in the near future. From a methodological point of
view, it showed that the integration of applied genre analysis with the
tools of corpus linguistics can bring interesting insights as to both the
overall structure of judgments in relation to their communicative purposes and discourse community, and a more detailed and systematic
study of the linguistic constituents representing the discursive esh, as
it were, of judicial argumentation.
Among the research directions suggested here, two seem to show
promise. First of all, since HOLD is by no means the only frequent
reporting verb within Arguing the case and judgments at large, it
would be worth nding out which ones among the other recurrent elements of this category
e.g. CONSIDER and BELIEVE in Common
Law cases as well as SUBMIT and MAINTAIN in EC cases
are
used in order to introduce proponents and reported arguments, thereby acting as the respective counter-part of HOLD in the argumentative discourse of the judge/court.11 By reason of the comparability of
data, this would also test further the applicability and reliability of the
analytical framework designed for this paper.
Secondly, the corpus-based side of analysis could be extended to
other lexico-grammatical features employed in the construction of

DAVIDE MAZZI

argumentation. This might include connectives and adverbials, for

which a parallel semantic and functional analysis would be replicable.
A similar and yet far more challenging task would be to establish
whether any discursive tools can be systematically associated with
widely spread forms of argument, as Nivelle and Van Belle (2006)
have at least in part set out to do.
In either case, the adoption of an integrated methodological
approach alongside with a broadly comparative perspective would
sharpen our knowledge of the communicative resources typical of the
specialised argumentation at work in judicial settings.

5. NOTES
1

To be honest, legal discourse may not only be tackled descriptively, but normatively as
well. However, the empirical approach of the genre- and corpus-based analysis of the paper
explains why more descriptive contributions to the eld are privileged in the literature review
of this section.
2
Obviously, comparability does not mean full homogeneity. In fact, it could be argued that
dening the House of Lords and Irelands Supreme Courts as judicial fora of last instance is
not entirely correct, since in some cases their judgments may be appealed against before the
Court of Justice of the European Communities. This would give rise to a set of other technical objections opening the way to a slippery slope argument questioning the meaningfulness
of a cross-court comparison altogether. However, the paper is more deeply concerned with
the discursive analysis of judicial argumentation, and it therefore leaves genuinely jurisdictional disputes to legal theorists and experts in comparative jurisprudence.
3
The dierences among European, English and Irish judgments are by and large of a linguistic nature as well. On the one hand, in fact, English and Irish judgments are drafted in English;
on the other hand, EC judgments are originally written in English only if this is the language of
the parties in the dispute. However, this does not undermine the stability of EC texts, because it
was observed that neither the surface of text nor the generic structure of judgments are aected
by potentially diering source-languages from which the English version is derived. Insights on
the ,frozen format of EC judgments are provided by Rega (1997).
4
The automated corpus study of HOLD was carried out through the linguistic software
package Wordsmith Tools 3.0 (Scott, 1998).
5
The linguistic realisation of the conict of categorisation is the main topic of Mazzi
(2006).
6
In this respect, Plantin (personal communication) suggests that there is considerable univocity between the judicial discourse community and the genre it supervises. In order to frame
the communicative events included in the genre of judgments, Plantin claims that it would be
appropriate to point out that there are no footing (Goman, 1987, pp. 179 180)
variations aecting the production of the genre on the part of judges.
7
In every numbered example as well as in tables, the name of the courts considered is
abbreviated: HL stands for House of Lords, ISC for Irelands Supreme Court and EC for
Court of Justice of the European Communities.
8
This statement may sound rather peremptory in the context of an introductory study of
reporting verbs in judicial discourse such as the one attempted in the paper. However, its
validity is ensured by the comprehensive cross-check of data on the larger reference corpus
(cf. section 2).
9
For a good reference study on this aspect, see MacCormick (1978).
10
Actually, the 388 occurrences of HOLD largely outnumber the bare 39 attested for RULE.

CONSTRUCTION OF ARGUMENTATION IN JUDICIAL TEXTS

11

A more comprehensive study of reporting verbs across courts is actually carried out in
Mazzi (forthcoming b).

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