法律語言改革之我見－－以法律語言的特性為中心

法律是一種以語言形諸於外的社會現象。無論是書面的法條和判決書，抑或口頭的法庭對話，主要都是以語言為媒介，只不過是語言形於外的表現方式稍微不同罷了。從社會語言學的角度看，一種語言正體本來就會有多種變體，每一種變體都反映使用者一定的身份、地位、年齡、性別或職業等，因而使用者會自然而然地在特定場合、面對特定說話對象時，有意無意地選擇正體或者某一種變體。作為語言變體之一的法律職業行話，亦複如此。因此，法律語言帶有一定的特殊性，本來是無可厚非的。只不過法律語言，在國內和國外不同程度上，如今已經陷入追求極度專業性與辭藻華麗的泥淖中，演變到艱澀、詭異得無法自拔的地步。何況法律職業，不比其他行業，其與個人的利害關係是不言而喻的，實在沒有諱莫如深、過分拘謹，將受其效力約束的個人拒於“千裡之外”的道理。俗話說：“過猶不及”，真可謂法律語言當今的處境的最佳寫照。筆者就是在這樣的現實的激勵下，衡諸國內的現況，參考國外的先例，試圖就漢語的法律語言的是非功過，考量法律語言固有的特性，抒發一己之淺見，以期避免重蹈西方國家的覆轍。筆者認為，通過檢討和比較，應當可以在今後為學界和實務界，在法律語言的探討上提供一條新穎的思路，進而加速我國司法現代化的進程。

The law is a social phenomenon manifested mostly through the use of language. Be it statutory regulations and judicial rulings in written form, or legal discourse in action in the courtroom in verbal form, language serves as the predominant medium within the legal context, no matter how distinctive the two forms may appear on the outside. In terms of sociolinguistics, the standard form of any given language would most likely have many different varieties, which may reflect, in varying degrees, the speaker’s status, identity, age, gender or profession and so forth, with the native speaker, vis-a-vis the addressee, making their choice of language style and variety based on their judgment of the particular situation, either intentionally or nonchalantly .That could be said of legal language as well, which is considered one of the many varieties of standard language. Hence, there should be nothing inherently wrong about legal language featuring some peculiarity and uniqueness. However, in light of the fact that legal language has developed a status quo that is so unique that it has become overly incomprehensible, farfetched and unearthly even for members of the legal profession, not to mention that, unlike other professions, the legal profession deals mainly with the law, which can and does exert unparalleled power over all subjects in its jurisdiction. That is one of the various reasons why we cannot afford to have legal language that appears excessively exotic, absurd or hard to understand to the ordinary person. One need always bear in mind that we, in repairing situations in general, should not take things to the extreme, hoping for extremes to ultimately meet, which is, sadly enough, exactly what our legal language has come to. In light of all the facts and issues laid out above, by virtue of the presentation of this essay, the author would, taking into account the intrinsic attributes of legal language, like to express his views on the merits and demerits of China’s current legal language status and eventually come up with a proposal, with a view to avoiding repeating the same mistakes industrialized nations have already made on the way. In balance, the author truly believes that from this point on, through due re-examination and comparison, both the academic community and the legal profession alike could manage to approach legal language in an unprecedented manner, which, in turn, should undoubtedly expedite the progress of the modernization of China’s judicial institution.