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The Legal Significance of Ordinary Words
Friday 9-10:30
What patients really know about the terms used in obtaining informed consent: False comfort, unreasonable fear, and "medical research"
The language used in explaining medical research to potential human subjects can be as important as the information conveyed. In particular, word choice must be free of connotations that could unduly and unreasonably influence potential subjects in either a negative or a positive way. Our goal in this paper is to explore some of the potential effects, in INFORMED CONSENT discussions, of the clinical investigator's word-choice on the willingness of medical patients to serve as experimental subjects in medical research. Of
special interest is the terminology that is used to name the enterprise itself.
In 1995, nearly 2,000 interviews were conducted in five different hospitals across the United States for the President's Advisory Committee on Human Radiation Experiments (PACHRE). Persons interviewed all had at some time in their lives taken part in medical research as human subjects. Of those interviewed, 103 also participated in in-depth follow-up interviews in which they were asked to explain their research participation, general attitudes towards research, and attitudes about their participation (including the informed consent process), and explicitly to define the terms STUDY, CLINICAL TRIAL, MEDICAL EXPERIMENT, and CLINICAL INVESTIGATION. The interviews were audiotaped, and 99 were transcribed.
Our paper will (1) evaluate the responses of a randomly selected sample of 26 of these PACHRE interviewees and (2) make a preliminary evaluation of the effects of the connotations of the individual items in the presentation of INFORMED CONSENT information.
Ordinary English words: the language of the Aboriginal Land Commissioner
Since 1976 when the Aboriginal Land Rights Act (Northern Territory) came
into force the Aboriginal Land Commissioner (ALC) has presided over many
claims for land in the Northern Territory of Australia by Aboriginal people. The Act was intended to reflect a fundamentally different
approach to land tenure and therefore contains expressions such as traditional owners, local descent group and primary spiritual responsibility for a site and the land. Successive Land Commissioners have wrestled with
the interpretation of such expressions and at least some of their
deliberations are recorded in the ALC Reports.
To give one example of the problems involved: consider the term traditional. Some Aboriginal groups in the Northern Territory have
had over 100 years of intensive contact with outsiders resulting in
generations of intermarriage, loss of ancestral languages and dislocationfrom their homelands. It is part of the ALCs function to assess the
extent to which such people may qualify as traditional owners within the meaning
of the Act.
In this paper an analysis of the language of the ALC draws mainly onmaterial from the first 50 ALC Reports (from 1978-mid 1996, now availableon CD-ROM). I also draw on some transcripts of proceedings of a landrights case that has been in progress for many years and with which I am
familiar firsthand.
Although one ALC has said of an expression in the Land Rights Act that itshould be treated as ordinary English words it will come as no surprisethat different judges have found it appropriate to provide differentinterpretations of the same words. An account is given of the kinds ofauthority ALCs invoke to support their interpretations of the Act and the
ways in which the judges differ in their approach.
Order in the shadow of the law or, how contracts do things with words
Sometimes, saying something's so makes it so. For instance, saying "Iwarn you," warns the hearer. In philosophy of language, this is called aperformative utterance. Such an utterance -- a speech act -- creates
a state of the world; in some profound sense, such an utterance cannot
be false. Indeed, the "truth" of a performative utterance seems somehow
beside the point.
Laws are exemplars of performative utterances, as are many of the creatures the law creates, such as rulings, judgments, licenses,
patents, permits and contracts. In the paradigm cases of performative
utterances considered in philosophy, the act performed by the words is clear, as
in the "warning" case above. The (rough) corollary for law is
specification and imposition of consequences for certain events or behavior. Other
acts also are performed; an obvious example is attachment of a stigma to certain behaviors (and people engaging in them). But the express act -- of, say, making certain conduct illegal -- is, if not a law's
raison d'etre, certanly among the most important acts the law performs.
Complex business contracts are different. Such contracts expressly
summon up the law's force for all the promises they contain. But the
relationship between the promises and the law's force is more attenuated. Very often,contract provisions set the stage rather than providing the
script: accomodation seems more the rule than the exception. But the
attenuation goes much further: many provisions can be understood better as
serving some other function, such as ferreting out information (representationsand warranties in acquisitions) or reminding people to check
certain things (various notification and certification requirements in
loan agreements). The shadow of the law is ever-present, but quite pale. Formost contracting parties, the law's spectre is one of the many reasons
to do what they promised to do, and often, not the most important reason.
My paper will explore the speech acts contracts perform -- how contracts
do things with words. It will consider the interplay between contractsand law: how, and to what extent, contracts summon up and use the force
of law. Finally, my paper also should enrich the concept of
"performative utterance" itself, by clarifying the complex relationship between the"performance" of a speech act and the content of the act.
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