According to the theory of speech acts, speech is a kind of action. He, who says something, does something. Certainly, when a judge or a court makes a decision, he or it says something. He performs some (locutionary) acts like uttering or writing some sentences. However, there is something further he does, namely, by uttering or writing some sentences in the appropriate context, he makes a judicial decision. In a judicial decision the judge says something about the law, the facts of the case, and the consequences that the legal system imputes to the parties, in the most cases, the plaintiff or the prosecutor and the defendant. How does the judge saying the things he does bring it about that he has adjudicated a case? More specifically, what kind of speech acts, or more precisely, illocutionary acts, does he perform, and what is their relation to the adjudication? As these questions indicate, the aim of this paper is to give an account of judicial decisions from the point of view of the theory of speech acts. This account can contribute to two different projects at the same time. On the one hand, it can help to explain the nature and the structure of judicial decisions, as a set of sentences uttered by the judge which constitute a set of speech acts. This promises to be a fruitful way to determine what a judicial decision is and what kind of structure it has. In addition to this, as we will see, a speech act analysis can explain the criteria used to evaluate judicial decisions. This analysis will make clear that a judicial decision is a highly complex logical sequence of illocutionary acts, or to put it in a more precise way, of speech acts with several illocutionary forces. Consequently, it is possible to evaluate these speech acts, from a variety of points of view: truth or falsity, correctness or incorrectness, and validity or invalidity. On the other hand, this account can also contribute to the theory of the speech acts by providing an analysis of speech acts which occur in the highly institutionalized context of judicial decisions. Such an account can contribute to how the theory of speech acts explains the relationship between language and reality, and in particular how by having certain status functions certain speech acts can not just reflect but change reality.
|Number of pages||20|
|Journal||European journal of legal studies|
|Publication status||Published - 2007|
- theories of law