The Difference between the Performative of "Guilty" in Legal and Ordinary

"Guilty" is a common word that is shared between legal and ordinary language. "Guilty" has a different performative in legal discourse in that it differs from its performativity in ordinary language from three perspectives: first, definition; second, regarding the circumstances surrounding the utterance in order to perform a legal effect (illocutionary effect); and finally, the perlocutionary effect produced by the utterance of "guilty" in a legal context is different from the effect produced in ordinary language. According to the Oxford English Dictionary, "guilty", if uttered in ordinary language, is

A feeling of having committed wrong or failed in an obligation: ‘he remembered with sudden guilt the letter from his mother that he had not yet read’.139

139

Oxford Dictionaries, 'guilty'

<http://www.oxforddictionaries.com/us/definition/american_english/guilt> accessed 17 August 2015.

On the other hand, according to Oxford’s A Dictionary of Law, "guilty" is 1. An admission in court by an accused person that he has committed

the offence with which he is charged. If there is more than one charge he may plead guilty to some and not guilty to others.

2. A verdict finding that the accused has committed the offence of which he can be convicted on the basis of evidence in the case.140

"Guilty" in legal discourse implies the wrongdoing of the convicted that brought him/her before the law, and the decision of guilt is supported with evidence, not feelings. Thus, the dynamics of the trial are entirely based on bringing sufficient evidence to prove the accused’s guilt or innocence. Hence, the court seems to pronounce guilt on the accused, who may or may not feel internally guilty. Thus, guilt in legal discourse is externally imposed by the court, unlike ordinary language, in which the individual professes or admits guilt by him/herself.

In order for the term "guilty" to perform its illocutionary and perlocutionary effects in ordinary language, the individual has to realise their own wrongdoing (illocutionary effect). As a consequence of the emotion of guilt, the individual will change their behaviour if their feelings were genuine (perlocutionary effect).141

However, in order for the pronouncement of "guilty" to perform its legal effect, it has to be uttered in compliance with certain conditions; otherwise, the utterance alone is not sufficient to produce a legal effect. A successful utterance of "guilty" in legal discourse has to be in accordance with the conditions or procedures described in a given law. Otherwise, the utterance of "guilty" will fail in producing a perlocutionary effect. Strawson recognises this, stating 'Thus the fact that the word "guilty" is pronounced by the foreman of the jury in court at the proper moment constitutes his utterance as the act of bringing in a verdict; and that this is so is

140

Elizabith A. Martin and Jonathan Law (eds) Oxford Dictionary of Law (sixth edn, Oxford University Press 2006).

certainly a matter of the conventional procedures of the law'.142 _{Thus, if the}

judge/jury were off duty outside the courtroom, their utterance of the word "guilty" will not perform perlocutionary effect, as would be the case if the judge made a pronouncement of the word ‘guilty’ before the trial began, or if the judge uttered ‘guilty’ outside the courtroom and off duty.

The illocutionary act of the judge/jury’s utterance of "guilty" involve declaring that the accused is guilty, while the perlocutionary effect resembles changing the 'emotional states and behaviour of many of the people in court'.143 Yet, the

perlocutionary act of 'guilty' is the legal performative that happens after the utterance as the pronouncement of guilt establishes the right to appeal for the convicted, according to section 108/ (1) of the Magistrates’ Courts Act 1980 on the right of appeal to the Crown Court:

(1) A person convicted by a magistrates' court may appeal to the Crown Court—

(a) if he pleaded guilty, against his sentence;

(b) if he did not, against the conviction or sentence.144

The right to appeal is one of the perlocutionary effects of uttering ‘guilty’ in a legal context. However, the legal effect is valid for a certain period of time. For example, the criminal procedure rules part 68.2. (b) state regarding the service of an appeal notice:

(1) The general rule is that an appellant must serve an appeal notice—

(a) on the Crown Court officer at the Crown Court centre where there occurred—

(i) the conviction, verdict, or finding,

142 _{P. F. Strawson,‘Intention and Convention in Speech Acts’ (1964) 73 The Philosophical Review} 439, 443.

143

ibid 18.

(ii) the sentence, or

(iii) the order, or the failure to make an order about which the appellant wants to appeal; and

(b) not more than—

(i) 28 days after that occurred, or

(ii) 21 days after the order, in a case in which the appellant appeals against a wasted or third party costs order. 145

It may be argued that the perlocutionary effect of "guilty" in legal discourse is limited by time, in which, for example, the right to appeal ends after certain time specified by the law. This is not necessarily the case of "guilty" in ordinary situations in that there is no fixed time for the person to feel guilty.

The language use of both legal and radical discourse appear similar, however they perform different illocutionary and perlocutionary effects. There are considerable differences between legal and radical discourses that can be seen from two points of view. The first is the reflexivity between language use and the actions of the discourse members. There is a clear difference between what the radical discourse members do and what they claim to be doing. For example, in a terrorists may claim to "defend" other Muslims, however, neither the victim nor the perpetrators are in an open conflict.146 For example, in the Woolwich terrorist attack in London

2013, Adebolajo and Adebowale were not in direct conflict with the victim Lee Rigby, and not even in direct relations with the Muslims who they were claiming to be defending. Therefore, Weinberg comments,

[T]he direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of

145

The Criminal Procedure Rules 2013 (UK). 146

Alex P. Schmid and Albert J. Jongman, Political Terrorism: A New Guide to Actors, Authors, Concepts, Data Bases, Theories, and Literature (2nd edn, North-Holland Publishing 1988).

opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message generators.147

Secondly, the authority in radical discourse is a personal authority; van Leeuwen defines personal authority as when 'legitimate authority is vested in a person because of their status or role in a particular institution'.148 _{This is because the}

predominant authorities in radical discourse seem to be Bin Laden, Qutb, Zawahiri,149 Mawdudi, and Abdullah Azzam, who influence individuals and groups

alike,150 _{while the authority in legal discourse is vested in the judicial system.}