3.1Genre and text type

The study of language and communication in legal settings has drawn much attention from applied linguists and discourse analysts, and both conventional and newly-formed approaches have been employed in order to explore the ideologies and practices of courtroom interaction and police/suspect interviewing, e.g. Grice’s Cooperative maxims (Harris 1995Harris, Sandra 1995 “Pragmatics and Power.” Journal of Pragmatics 23 (2): 117–135. ), ethnography (Conley and O’barr 1990Conley, John M., and William M. O’Barr 1990 Rules versus Relationships: The Ethnography of Legal Discourse. Chicago: The University of Chicago Press.), corpus (Heffer 2005Heffer, Chris 2005 The Language of Jury Trial: A Corpus-Aided Analysis of Legal-Lay Discourse. Basingstoke: Palgrave Macmillan. ), evaluation and appraisal (Zhang 2007Zhang, Liping 2007 “Evaluation in the Language of Law: Appraisal and Its Linguistic Realizations in Chinese Courtroom Discourse (以“评”说“法”: 法庭辩论中的评价资源与实现手段).” Foreign Language Teaching (外语教学) 6: 29–33.), and facework (Archer 2011Archer, Dawn 2011 “Cross-examining Lawyers, Facework and the Adversarial Courtroom.” Journal of Pragmatics 43 (13): 3216–3230. ). Against this eclectic backdrop of research methodologies, the present discursive study of Chinese legal language draws on two closely-related analytical notions, i.e. genre and text type. Genre is not only patternized texts of highly visible structural conventions and formats, it is also “situated linguistic behavior in institutionalized academic or professional settings” which gives shape to these surface textual patterns (Bhatia 1997Bhatia, Vijay K. 1997 “Genre Analysis Today.” Revue belge de philologie et d’histoire 75 (3): 629–652. : 629). Judicial opinions as a genre refer both to the ultimate legal documents which bear the very name of opinions, and to judges’ actual writing practices of building facts, applying the law, and deciding parties’ disputes as reported in the documents. Genres may be conceptualized on different levels of the generalization of communicative context. The traditional view focuses on the general socio-cultural context and treats genre as the basic types of rhetorical modes including, among others, narration, description, argumentation, persuasion, exposition, instruction, and information (Paltridge 2002Paltridge, Brian 2002 “ Genre, Text type, and the English for Academic Purposes (EAP) Classrooms.” In Genre in the Classroom: Multiple Perspective, ed. by Ann M. Jones, 73–90. Mahwah: Lawrence Erlbaum Associates, Inc.: 77). While this view enables an easier categorization of texts into larger groups according to general expressive purposes, such as to entertain, to inform, and to persuade, it defines genre so broadly that significant context-sensitive differences among texts and their rhetorical situations could be overlooked. Textbooks and research articles carry the same general purpose of informing, but to inform students and to inform expert colleagues may be two dramatically different communicative processes. Further, the defining of a single text as a member of one such broad category, for example, judicial opinions as texts of deductive argumentation, may be so reductive that the subtle operation of other rhetorical modes is completely neglected. The understanding of such context-sensitive nuances requires a better solution of considering these general types of rhetorical modes (narration, description, persuasion, etc.) as text types which could be used in the composing of different genres, and genre itself is defined in terms of specific communicative goals of recurrent socio-professional situations, like textbooks, research articles, editorials, advertisements, recipes, grant proposals and news interviews (Bhatia 1993Bhatia, Vijay K. 1993 Aanalysing Genre: Language Use in Professional Settings. London: Longman.; Blitvich 2010Blitvich, Pilar 2010 “A Genre Approach to the Study of Im-politeness.” International Review of Pragmatics 2 (1): 46–94. ). Observing with this contrastive conceptualization of genre and text type, the major purpose of this study is to explore Chinese judges’ use of various broadly defined text types in their actual construction of the genre of judicial opinions.

3.2Data and analysis

Chinese judicial opinions are of an apparent dual function. On the one hand, they are addressed to “the state itself, or more specifically, a set of state actors – courts, agency officials, and enforcement officers” (Stevenson 2003Stevenson, Drury 2003 “To Whom is the Law Addressed.” Yale Law & Policy Review 21 (1): 105–167.: 108). A large number of case volumes are compiled and published by Chinese higher and supreme courts annually in order to establish legal authority for the future adjudication. Although the legislature does not officially endow Chinese judges with the right of making law, these published case volumes represent one important part of the front-stage of Chinese legal system and they function as professional guiding books, the violation of which requires quite elaborate justification. On the other hand, Chinese judicial opinions are important tools of educating the general public about law and there is an explicit requirement that judicial opinions should be publicly accessible on internet or in print forms (Articles 13 and 38, The Five-year Reform Outline of People’s Courts, 1999). In order to ensure the coverage and representativeness of data used in this study, the selection of sample opinions is confined to the cases which are officially published on the website of the Supreme Court of the People’s Republic of China (http://​www​.court​.gov​.cn​/wenshu​.html). Attention is paid to one particular type of legal case only, i.e. civil lawsuits. Civil lawsuits address the economic and tortuous disputes of parties and they constitute the paramount section of Chinese trial judges’ daily business.

The authors take length and recentness as another two criteria of selecting data. Care is taken to choose opinions which are of a length of no less than eight thousand Chinese characters and which are written and signed by Chinese judges after the year of 2010. Looking through the civil judicial opinions, from the newest to the oldest, published on the website of the Supreme Court of The People’s Republic of China, the authors select the first 100 opinions which meet the above criteria and consideration as the primary data for the present study.

The textual analysis starts from a detailed reading and analysis of the first 30 opinions (choose according to the order of the date of publication) of the chosen data. The taxonomy of rhetorical modes identified in the above studies is taken as pre-established categories, including narratives, recounts, anecdotes, arguments, reports, explanations, descriptions, instructions, etc. (Martin and Rose 2008Martin, J. R., and David Rose 2009 Genre Relations: Mapping Cultures. London: Equinox.; Duke, Caughlan, Juzwik, and Martin 2012Duke, Nell K., Samantha Caughlan, Mary Juzwik, and Nicole Martin 2012 Reading and Writing Genre with Purpose in K-8 Classrooms. Portsmouth, NH: Heinemann.). The authors read carefully through each of these 30 opinions, marking and discovering repeatedly occurring rhetorical modes. Any unclear features and patterns are examined against another 20 opinions. The remaining 50 opinions are used for the verification of findings. In order to further enhance the credibility of such explorative textual analysis, the authors submit results to the examination of specialists – three judges sitting in two different Chinese courts. They have a judicial career of ten (specialist No. 1), fifteen (specialist No. 2), and twenty years (specialist No. 3) respectively. Interviews with the specialists (see the Appendix) are both general and text-based. The general interviews solicit specialists’ reflections and thoughts on their lived experiences of opinion-writing. The text-based interviews seek to examine the findings of the above textual reading, and specialists are welcome to add their own perceptions. Twenty formal interviews (45–70 minutes) are conducted. The combination of the top-down textual reading and the open-ended specialist interviews reveals that Chinese judicial opinions are not a monolithic argumentative text type, but a complicated legal genre invoking a multiplicity of rhetorical modes, including argumentation, narration, exposition, and instruction:

4.1Argumentation

Judicial opinions, as described above, are an impersonal logic-deductive argumentative text type where judges present facts as the minor premise, quote statutory stipulations or general principles of law as the major premise, and mechanically do the deductive algorithm. This creates the impression that judicial opinions are unavoidably formed by the detached application of law activated by existing facts and judges’ adjudication is solely based on the use of Logos, one of the three persuasive modes. In order to fulfill the purpose of effecting attitudinal or behavioral changes in the target audience, argumentative texts, according to Aristotle, may use three different persuasive modes: Logos, Ethos, and Pathos (Kennedy 1991Kennedy, George A. 1991 Aristotle, On Rhetoric: A Theory of Civic Discourse. Oxford: Oxford University Press.). Generally speaking, Logos relates to reason and logic, concentrates on the propositional message, and highlights the internal consistency of arguments. Ethos stresses the speaker’s trustworthiness by evoking his/her expertise, authority, and reputation. This mode of persuasion places the speaker in an advantageous position where they can talk in a superior tone with the audience because of his/her good command of subject-matter knowledge. Pathos appeals to the audience’s capacity for empathy and is intended to solicit an emotional response. Pathos normally takes the form of passionate speeches and it can be most effective when the speaker successfully builds connection with the audience’ value projects. The analysis discovers that the invoking of Ethos and Pathos is not uncommon in Chinese judicial opinions, showing the judges’ significant authorial involvement in the administration of law.

Judges’ authorial involvement seems necessary if one notices the impossibility of the ideal complete legislative coverage which is unavoidably caused by the limits of human capacity and the constant fluidity of society. Judges need to handle some controversies which are not or can not be anticipated and fully addressed by the legislature. Parties of the following case have conflicting understandings related to some of the standard terms in their publishing agreement. The judge explains the general principle of law which the interpretation of standard contract terms should follow:

Here, the judge makes a quick reference to the legislative provision “where there are two or several possibilities of interpreting standard contract terms, the one unfavorable to the party providing the contract shall be preferred” (Article 41, The Contract Law of PRC), and then supplies an elaborate discussion of the legislators’ intent of making this law. The latter part reads highly argumentative and the judge makes an apparent authorial presence in the text, as evidenced by the intensive use of grammatical hedges (Mao 1993Mao, Luming R. 1993 “I Conclude Not: Toward a Pragmatic Account of Metadiscourse.” Rhetoric Review 11 (2): 265–289. ), “as maximally as possible”, and three “possibly”. The textual visibility of the judge’s personal self suggests that he claims a direct responsibility for the interpretation of the codified law. The trial judge, not without pride and esteem, uses his professional knowledge (Ethos) to decide controversies for the disputing parties, to exemplify how to adjudicate similar cases for his fellow judges, and to demonstrate for the community at large the power of his expertise in the development of law.

More dramatic elements of personification are added to judicial opinions when judges employ Pathos to maximize the acceptance of their judgments across non-specialist opinion readers. Instead of seeking guidance for future actions, these non-specialists look for best legal answers for practical questions in judges’ writing (Wells 1994Wells, Michael 1994 “French and American Judicial Opinions.” Yale Journal of International Law 19: 81–133.: 87). Compared to the analytical weights carried by Logos and Ethos, the strategy of rapport-building inherent in Pathos turns out to be a more effective persuasive mode in judges’ efforts of convincing non-specialists of the rightness of their judicial conclusions. The plaintiff of example text 2 loses his personal belongings when he travels on a bus owned by the defendant. The plaintiff claims that the defendant should have guarded the safety of passengers’ personal belongings, while the defendant counter argues that passengers themselves should take care of their own belongings. The hearing judge expresses his point of view:

Far from being a value-free comment on the two parties’ actions, the judge performs a rhetorical extravaganza here. Grammatical emphatics (Hyland 2004Hyland, Ken 2004 Metadiscourse. London: Continuum.) are intensively used to show his negative attitude towards the plaintiff: “of course bear more duty”, “fully aware of the very fact” and “carelessly handed it”. The emphatic “of course” carries the judge’s confidence and decisiveness in concluding that the plaintiff should “bear more duty” in this incident. Moreover, “of course” positions the plaintiff’s claims as a self-evidently incorrect argument because he himself fails to “specifically mention” the uniqueness of his belongings. “Fully aware of the very fact” and “carelessly” express the judge’s strong negative perception relating to the plaintiff’s improper manner of taking care of his own things. Similarly, the comment on the defendant is also highly emotion-charged. “Out of kind and sympathy” and “very prompt” indicate the judge’s appreciation of the defendant’s good intent in helping the plaintiff. It is implied that the plaintiff should not have started the lawsuit in the first place; instead, he should have expressed gratitude to the defendant’s virtuous deed. The judge’s candid tone creates an imaginative ethical situation where the opinion readers’ understanding, if dissenting from the judge’s, may set the innocent wronged and the guilty free. This naturally invites the readers’ empathic reading response and requests them to connect affirmatively with the expressed sensational judgments (Pathos).

4.2Narration

As found in the collected sample opinions, the incorporation of factual narratives is an indispensible move of Chinese judicial writing. The comprehensive report of facts provided by these narratives represents the very troubling point of life world which necessarily triggers and suffices the intervention of law world, considering that the primary function of law is to spot disputes “arising out of social relations of disgruntled people” (Conley and O’Barr 1990Conley, John M., and William M. O’Barr 1990 Rules versus Relationships: The Ethnography of Legal Discourse. Chicago: The University of Chicago Press.: 66) that fall precisely within the realm of law, to maneuver legal apparatuses, to enact realities over disputes and finally to restore balance to the disturbed social lives. Narrative is one of the basic forms of human communication and its major purpose is to organize and transfer personal experiences to others through verbal recounting behaviors (Labov 2011Labov, William 2011 “Oral Narratives of Personal Experience.” In Cambridge Encyclopedia of the Language Sciences, ed. by P. C. Hogan, 546–548. Cambridge: Cambridge University Press.). Narratives are seldom a sheer recapitulation of past experiences and it is neither possible nor desired for narrators to render their recounts completely value-free or purely referential. The forming of narratives is considerably shaped by the narrators’ intention of carving out the public face of past experiences in evaluative ways favorable to their personal interests. In case of judicial opinions, narrating interests include the enacting of realities over disputes, the assignment of blame and responsibility, and the reinforcing of the legal ideology of the rule of law (not the rule of judges).

The narrating behaviors, regardless of social and cultural constraints, tend to follow a common six-step structural pattern: abstract, orientation, complication, resolution, evaluation, coda (Labov and Waletzky 1967Labov, William, and Joshua Waletzky 1967 “Narrative Analysis.” In Essays on the Verbal and Visual Arts, ed. by J. Helm, 12–44. Seattle: U. of Washington Press. Reprinted in Journal of Narrative and Life History 7: 3–38.; Han 2016Han, Zhengrui 2016 “The Mediatisation of Chinese Corporate Communication: A Linguistic Approach.” East Asian Pragmatics 1 (1): 127–147. ). Chinese judges’ factual narratives are no exception to this general pattern, but with significant variations. A tortuous case is chosen for the purpose of illustration, where a complicated series of events have caused bodily harms to the plaintiff. The plaintiff and the defendants of the case hold opposing views on which side should be held accountable for the caused injury. The plaintiff argues that his sufferings are undeniably caused by defendant B’s incontrollable tricycle and defendant C’s misplaced hot oil pot; while the two defendants maintain that the plaintiff’s injury is caused by his own imprudence as he recklessly moves B’s tricycle and knocks down C’s hot oil pot. The two views advocate two uncompromising versions of one same past incident, and it becomes a necessity for the trial judge to distinguish the true from the false and to provide the official version of fact:

Compared to the structure of conventional narratives, factual narratives of judicial opinions are of a neatly organized Orientation – Complication – Evaluation – Resolution pattern. The absence of Abstract and Coda in this pattern is not without significance. Abstract is a key point where story world and reporting world interact. Narrators employ Abstract to encapsulate the point of story (Johnstone 2001Johnstone, Barbara 2001 “Discourse Analysis and Narrative.” In The Handbook of Discourse Analysis, ed. by D. Schiffrin, D. Tannen, and H. E. Hamilton, 635–649. Oxford: Blackwell.: 639) and claim, in a straightforward manner, that it is worthy for the audience to direct their attention from reporting world to the story world. Similarly, Coda, as a section bridging story and reporting world, is temporally separated from the end of the story (Resolution) and what it highlights is the impact of past experiences on the present narrating world, in terms of the narrator or the audience.

Although the missing of the two steps may seemingly jeopardize a successful communication of the judge’s telling of legal facts, it is arranged intentionally for the adjudicative purpose of enacting legal realities. An intertextual reading of the whole judicial opinion, for example, reveals that the interacting work between story and reporting world which is meant for Abstract and Coda is actually completed by other parts of the judicial opinion. Points of the legal story, i.e. issues of the case (the plaintiff’s injury), are introduced at the very beginning of the judicial opinion and are further elaborated in the judge’s quoting and anti-quoting of both parties’ controversial arguments (Han 2012Han, Zhengrui 2012 Legal Communication of Chinese Judiciary: A Discourse-based View. Bern: Peter Lang. ). They become already known when opinion readers read through the first parts of the judge’s writing, and what is kept unknown while opinion readers begin to approach the factual narratives is what concrete activities have actually given shape to the point of legal story (i.e. the plaintiff’s injury), an answer to be found in the judge’s narrative. The intertextual arrangement enables the judge to start, in this section, with a much straightforward description of the settings of incident, sealing off the parties’ foregoing controversial arguments and then setting about finalizing how the point of legal story has been developed. Likewise, in the reporting world of adjudication, the Coda of the example narrative naturally refers to the judge’s forthcoming response to the narrated events, i.e. their long-awaited legal reasoning and judicial decision following the story part. In this sense, the judge’s analytical writing following Example text 2 within the same opinion can all be taken as the Coda. So, the schematic variation of legal stories suggests no lack of narrating skills, but a higher degree of intertextuality of opinion writing practices.

The second professional job completed by the example narrating text is the assignment of blame and responsibility. Legal discourse is basically evaluative because it is one of the crucial social institutions measuring, comparing, judging, and disciplining people’s activities. The evaluative agenda is particularly prioritized and explicitly marked off in judges’ writing of adjudicating genres. Judicial evaluation may be based on the criteria of truthfulness or appropriacy, depending on whether parties’ verbal arguments or physical behaviors are being examined. As factual narratives address past experiences of parties’ conflicts, it becomes necessary that the appropriacy of each side’s action is assessed and praise/blame is assigned accordingly. The assignment of praise/blame in everyday narratives is normally realized through strategic linguistic devices in order to conceal the narrator’s intention of “transforming the social meaning of events without violating our commitment to a faithful rendering of the part” (Labov 2011Labov, William 2011 “Oral Narratives of Personal Experience.” In Cambridge Encyclopedia of the Language Sciences, ed. by P. C. Hogan, 546–548. Cambridge: Cambridge University Press.: 548). On the contrary, the assignment of blame in Chinese judicial opinions is mostly foregrounded by the highlighted causality markers (“because”) and contrastive use of negation (“did not operate properly”). Temporally-ordered clauses of narratives reflect narrators’ theory of causality through which narrators hold the former of any two temporally linked clauses accountable for the occurrence of the latter. The manifestation of the usually implied causality has a strong pragmatic force of attributing blame and responsibility, in this case, to the plaintiff (“because he did not operate properly”). For the same reason, negation is one of the important devices creating irrealis events which “did not happen or might have happened or had not yet happened” (Labov 2011Labov, William 2011 “Oral Narratives of Personal Experience.” In Cambridge Encyclopedia of the Language Sciences, ed. by P. C. Hogan, 546–548. Cambridge: Cambridge University Press.), in this case, the plaintiff operate carefully. The function of irrealis is to serve a contrasting point of reference for narrators to unfavorably assess the reported event. The trial judge and opinion readers alike, here, can draw no other conclusions but that the plaintiff has failed to do something he should have done. The explicit authorial intervention implied in the foregrounding of authoritative evaluation which may undermine narrators’ credibility in everyday narratives is a legitimate rhetorical move for legal narratives, since the trial judge is privileged, and also obliged to exercise judicial power, to remove potential ambiguities in his language of delineating responsibilities between disputing parties, and finally to provide concrete legal instructions on how the damaged justice may be renovated. Reflecting on such writing practices, specialist No. 1 says:

The uptake of law transparency movement does require me to reveal more details of courtroom trials. My colleagues and I start to provide more factual narratives in opinions, and some of the narratives may read much like entertaining stories. However, the major purpose remains the same. We need to see through the fogs created by parties’ competing stories, and to corner the legal facts without any suspicious points. Our job is to mark the moral and legal weight of parties’ actions, sometimes, even at the expense of the coherence and entertainment of our narratives.

The third and final task fulfilled by this narrating text is the reinforcement of the legal ideology of law as a self-sufficient machine, free of judges’ personal influences. As argued at the beginning of the paper, the ideology of autonomy and objectivity is important for the maintaining of integrity and reliability of the legal profession. In order to achieve this, it is natural for trial judges to reduce their personal presence in judicial texts to a minimum level. There are quite a few carefully planned linguistic arrangements in this example text serving this purpose. Firstly, the narrator introduces all characters in third-personal singular forms and portrays himself as some objective observer holding no invested interests in the reported incident. Secondly, there is a dehumanization of the characters as they are universally named with generic labels, i.e. plaintiff A, defendant B, and defendant C. Here, the parties’ personhood with full details and subtleties is reduced into impersonal “functionalized” parts (Van Leeuwen 2008Van Leeuwen, Theo J. 2008 Discourse and Practice: New Tools for Critical Discourse Analysis. Oxford: Oxford University Press. : 41) of the adjudication machine. The highlight becomes the operation of law machine, but not the recount of parties’ personal experiences. Thirdly, the narrative is characteristic of a plain language style, with an apparent absence of complicated narrative techniques, like detailed descriptions, dialogues, quotes, flashbacks, and elements of surprise. Particularly, the use of assertive clauses throughout the narrative provides nothing but a network of bare propositional meanings. The denial of the interactive and rhetorical dimensions of communication closes the floor for any possible reader responses. To sum up, what the narrative conveys is not an ordinary negotiable re-telling of events which may or may not be accepted by opinion readers, but law institution’s unquestionable finding of what the past events actually are.

4.3Exposition

Exposition is one important mode of discourse in human’s enterprise of constructing and communicating knowledge about the natural and social world. As authors of expository writing are usually those who have expert knowledge on a particular topic, they enjoy a privileged position of providing the audience more information and insights on the topic and educating them (Hubbard and Spencer 2012Hubbard, Frances K., and Lauren Spencer 2012 Write to Inform. New York: The Rosen Publishing Group, Inc.). The basic function of explaining information makes expository writing an indispensible skill for specialists of almost any profession, including law, medicine, and business, to name just a few. In case of judicial opinions, what needs to be explained by trial judges includes not only the usually long-established legal rules and regulations, but also mundane ideas and notions that are newly converted into the legal realm because of law development. For the latter case, in order to catch up with the fluid and quickly evolving social lives, law keeps selecting concepts and notions from everyday life and other social sectors and institutionalizing them into binding legal doctrines.

One legal area where such new doctrines are frequently created and interpreted in China is personal moral rights. The idea of personal honor and integrity has been long acknowledged as a traditional Chinese culture phenomenon, but it remains not codified till quite recently. The increasingly integration of Chinese economy with the global market and also the awakening of individual rights, according to Kalscheur (2012)Kalscheur, Heidi A. 2012 “About ‘Face’: Using Moral Rights to Increase Copyright Enforcement in China.” Hastings Constitutional Law Quarterly 39 (2): 513–538., urge Chinese law to pay equal, if not more, attention to intangible personal rights, for example, rights to dignity, reputation, privacy, name, and mental health, in contrast to the more common tangible property rights and rights of personal freedom/security. The judicial efforts of explaining and sustaining intangible moral rights as newly surfaced legal notions, through the use of ritualistic language, are commonly seen in the collected sample opinions. In example text 4, the judge needs to provide a working definition of human dignity in order to decide whether the plaintiff’s moral rights have been violated by the defendant:

As Chinese legal tradition has treated the protection of dignity and other moral rights in rather a cursory manner, it is hard for the trial judge to retrieve any readily available theoretical circumscription from the legislature. So, he needs to conjure one judicial explanation of human dignity for the case at hand, one courageous judicial move of undermining the traditional legal ideology of impersonality and objectivity in a civil law system. However, less ideally, one noticeable feature of this and other similar legal explanations conjured by Chinese trial judges is that the concerned special topics (e.g. human dignity) are discussed with a much higher degree of generality, so that an apparent discontinuity is created between the expository texts and the discussion of concrete matters in other parts of opinions.

Elements of generality may be identified in a number of aspects. For example, the notion dignity is repeatedly categorized into broad connotative notions like “idea”, “respect”, “self-respect”, “subjectivity” and “objectivity”. If denotative language is a common strategy of constructing informative texts (Duke, Caughlan, Juzwik, and Martin 2012Duke, Nell K., Samantha Caughlan, Mary Juzwik, and Nicole Martin 2012 Reading and Writing Genre with Purpose in K-8 Classrooms. Portsmouth, NH: Heinemann.: 94), the exclusive use of connotative language without the support of denotative examples can only make the explained notion even more elusive. Secondly, there is quite limited connection between the expository writing and the parties’ immediate concern with the defining and protection of their personal interests. The judge’s explanation is neither temporarily nor conditionally defined because of the timeless verbal (“refers to”, “needs to be”, “is a matter”, “depends”) and generic noun constructions (“human dignity”, “one”, “others”). The lack of the explicit reporting of immediate relevance makes the introduction of this exposition text into the judge’s writing quite intrusive. Thirdly, the judge’s use of evidential markers (“needless to say”) suggests a sneaky intention of objectifying the rhetorical imposing of explanation from the knowledgeable to the ignorant. Evidential markers, according to Aikhenvald (2004)Aikhenvald, Alexandra Y. 2004 Evidentiality. Oxford: Oxford University Press., confer credibility on text and discourse by specifying the information source. “Needless to say” demonstrates that the evidential basis for the expository judicial writing is apparently (which is not necessarily true) accessible to the public and the text is only re-stating information already shared across a large number of people. The expository text, being objectified, is turned into an invariant definition of human dignity which may be universally applied regardless of the details and nuances of communicative settings.

While these linguistic characteristics of generality cause an apparent discursive discontinuity between the expository text and the case-sensitive discussions in the rest part of the judicial opinion, they create an interesting alignment between the trial judge and his professional colleagues as the text bears a close resemblance with the explanation of human dignity in other authoritarian settings, for example, a prestigious law textbook on Chinese civil law:

Human dignity refers to a citizen’s right to self-esteem and his/her right of being respected and valued by the society.(Liang 2011Liang, Huixing 2011 A General Introduction to Civil Law. Beijing: Law Press.: 98)

As can be seen, the textbook definition is of a close kinship with the above trial judge’s expository writing and is characteristic of the similar prevalence of connotative vocabulary (“right”, “self-esteem”, “respected and valued”), the similar use of timeless verbal (“refers to”) and generic noun constructions (“human”, “a citizen”), and the similar objectification of statement caused by the silencing of authorial voice (“human dignity refers to”). The trial judge’s conformity to the ‘formalized’ (Kadar 2013Kádár, Daniel 2013 Relational Rituals and Communication: Ritual Interaction in Groups. Basingstoke: Palgrave Macmillan. : 1–22) textbook language, not the other way round, is a communicatively significant writing practice of Chinese legal profession. The education of law in China is a national enterprise and most aspects of teaching follow state standards, including curriculum, syllabus, textbook, examination, and others. Law textbooks are normally written by government-endorsed professors and virtuoso practitioners and are meant to be a canonical pedagogical genre for the nation-wide use, and also to be an official source for the profession to practice law. Through aligning with the authoritarian textbook discourse, the trial judge’s expository writing, in general, reinforces the legal ideology that China law is a homogenous institution with a monolithic public voice, and in particular, helps the trial judge to take a not-too-hasty personal move of making law in a civil law system where the judges are not yet officially entitled to do so. Specialist No. 3 expresses his views with the following statement:

There is always a big gap between the ‘should-be’ world (the law) and the ‘as-it-is’ world (social lives). New disputes that are not covered by existing laws never cease appearing. The cases need to be closed on time and I cannot wait for the making of new laws. That will take you a thousand of years! I cannot make law, but I do rely on my own thinking and understanding. Everything should be done strategically. At least, you should disguise your writings as part of the canonical texts.

4.4Instruction

Instructional discourse is commonly seen in mundane and specialist contexts where readers need to learn “how to perform a specialized sequence of activities in relation to certain objects and locations” (Martin and Rose 2008Martin, J. R., and David Rose 2009 Genre Relations: Mapping Cultures. London: Equinox.: 182). Common example texts include cooking recipes, game directions, tourist guides, laboratory protocols, etc. The delivery of instruction, in everyday settings, is normally accompanied by experts’ illustrative performance of target activities. But in specialist settings, instruction is more likely to be mediated in written forms in order to permit people who are not together in time or space to direct and follow. The travel of instruction texts from the everyday activity-based pedagogical settings to the entirely verbal-mediated situations free of immediate contexts makes it impossible for instructors and followers to name objects and locations with simple reference items (e.g. here, there, this, that) or to make on-going adjustment and correction according to on-the-spot conditions. Accordingly, written instructions need to be of a higher degree of readability and accessibility (Bhatia 2008Bhatia, Vijay K. 2008 “Creativity and Accessibility in Written Professional Discourse.” World Englishes 27 (3/4): 319–326. ; Han and Li 2011Han, Zhengrui, and Li Xiaoyu 2011 “Discourse of International Commercial Arbitration: The Case of Mainland China.” Journal of Pragmatics 43 (5): 1380–1391. ), as they are required to explicitly describe participants, materials, objects, locations, and more importantly, concrete procedures the activity needs to follow.

Chinese trial judges’ writing of judicial decisions is a typical example of this kind of interactive instructional discourse:

Judicial decisions are judge’s final enforceable conclusions on the parties’ dispute. It is through this discourse that the law exercises power over the disturbance of social lives. As non-specialist readers, parties and the lay public most often pay their sole attention to this section in order to quickly locate legal answers for their social problems. Although normally positioned towards the end of judicial opinions, it can be the section which is read first. The example shows the judge’s clear awareness of opinion readers’ communication needs and his purposive textual arrangement of making the text a highly readable and accessible piece of writing. For example, the text is organized not in the form of paragraphed passages, but as a check list of main points, i.e. each of the points covered is itemized either explicitly by Arabic numbers or implicitly by separate indented sentences. Moreover, in order to remove potential misunderstandings between the multiple participants involved in courtroom trials, the trial judge avoids the usually adopted imperatives in instructional settings, and the whole judicial decision consists of a series of full-sentenced commands directing particular parties (“plaintiff X”, “defendant Y”) to take concrete actions (“compensate”, “pay”) in terms of different objects (“litigation requests”, “court fees”, “objection to this judgment”), with each components of the instruction explicitly marked out.

At the same time, the judicial instruction does reveal features which are significantly different from other types of instructional discourse. As argued, instruction, compulsory or not, is a kind of enabling discourse because its major purpose is to teach someone to fulfill things which are otherwise beyond their expertise (Purchell-Gates, Duke and Martineau 2007Purcell-Gates, Victoria, Nell K. Duke, and Joseph A. Martineau 2007 “Learning to Read and Write Genre-specific Text: Roles of Authentic Experience and Explicit Teaching.” Reading Research Quarterly 42 (1): 8–45. ). The audience of instructional discourse, in one way or another, benefit from their following of the instructed moves. But, in judicial settings, the instructional purpose is apparently retributive and the adjudicative goal is not to bring something that is not there to happening, but to provide corrections to what has wrongly happened, i.e., to reintroduce balance to the disturbed equilibrium by granting damages to the victim (compensate plaintiff X) and imposing penalty on the wrong-doers (defendant Y compensate). This connotes a significant evaluative dimension which is rarely seen in other types of instructional discourse. That is to say, what the judicial instruction stipulates are not optional moves which may or may not be followed by the target audience, but compulsory orders which have to be effected with an appropriate manner. The state power behind the court and judge guarantees a reliable deterrence for any possible disobedience (“The failure of effecting the stipulated payment shall lead to the imposing of a fine”).