Analytical philosophy of law in the civil litigation: how to perform actions using words

Shliakhtin Nikita Dmitrievich Leading specialist; Legal Protection Department; PJSC 'MOEK' 119311, Russia, Moscow, Stroiteley str., 6, room 3, sq. 23 nik.shliakhtin@yandex.ru

The civil procedure is based on a combination of written and oral proceedings in the case. These principles receive independent consolidation only after the adoption of the Statute of Civil Procedure in 1864. In its modern form, the principle of verbality is enshrined in article 157 of the Civil Procedure Code of the Russian Federation, with a more detailed statement in the wording of article 81 of the Arbitration Procedure Code of the Russian Federation on the possibility of a party to submit to the arbitration court its explanations about circumstances known to it that are relevant to the case, in writing or orally.

Ovcharenko A.V. pointed out that in the civil process, these principles are revealed in two independent elements, namely in the form of the process itself and in the system of rules of evidence. ^{[1, p. 13]} The process is by its nature a complex procedural fact with a consistent accumulation of elements. ^{[2, p. 224]} The rules of evidence aim to establish acceptable methods of persuasion. The proof is carried out before the court, with the aim of confirming the right in a binding act of authority. ^{[3, p. 34]} An authoritative binding act, in turn, is the last element of a complex procedural fact.

The main difficulty of this study is, as Ludwig Wittgenstein correctly noted, the inability to express through language what expresses itself in language. ^{[4, p. 76]} Thus, the research methodology is more intuitive and scientific, aiming to expand the discourse around the communicative theory of law in relation to the civil process, rather than to give a specific conclusion about how legal actions are performed through words. At the same time, a certain result has been achieved not only through linguistic analysis of law, but also through semantic analysis of the actions that we perform with the help of words, including during the judicial process.

The fundamental basis of the research is the protocol of the court session, which records the trace of the mechanism that analytical philosophy calls "actions with words." It is particularly interesting that in no other way, except through such a mechanism, it is impossible to imagine the dynamics of the judicial process. In the process of forming a separate procedural fact, the will of the person involved in the case is imprinted on the materials of the case, which is especially important for the subsequent historical analysis of the motives of the persons and the circumstances in which they acted.

A classic example of the classification of types of legal facts is the system proposed by O.A. Krasavchikov. The classification is based on the volitional criterion. All legal facts, depending on the presence of will in them, fall into two main groups: legal events and legal actions. ^{[5, P. 82]}

With regard to the civil procedure, E.V. Vaskovsky and E.G. Lukyanov express the opinion that a procedural action by itself cannot form a procedural legal fact. Only the actual composition is possible, in particular, the procedural action and the procedural response of the court to such an action will form a procedural fact. P.F. Eliseikin believes that not just the court's response to the action, but the court's authorization (approval) of the procedural action of the party leads to the appearance of a procedural legal fact. ^{[6, P. 48]}

From P.F. Eliseikin's thesis, it can be concluded that all procedural facts should be reflected in court documents – protocols, definitions and decisions.

Based on a brief introduction to the theory of procedural legal facts as a theoretical model, it would be wise to proceed to the consideration of the practical side of the process, namely, the question of how exactly procedural legal facts change the dynamics of the process. At first glance, it may seem that in order to answer this question, it is necessary to refer to the transcript of the trial and correlate the will of the judge in terms of judicial guidance of a particular process with the procedural documents of the parties and the court. Of course, this is the most obvious way, which nevertheless requires some depth of study of the issue.

As we said above, a procedural legal fact is exposed in the form of court rulings, but the reason for the court's conclusion that the process needs to be moved to the next stage (further, it is not necessary to talk about the stages of the trial set out in the procedural codes, for example, the definition of conducting a forensic examination also fits the criteria we set) is in accordance with The principles of competitiveness and dispositivity are either the expression of the will of the persons involved in the case, or a procedural legal fact with the subsequent accumulation of elements – in other words, when the very meaning of the process leads the judge to make a certain decision, for example, to end the stage of examining evidence and proceed to the debate of the parties.

Thus, the expression of will can be oral or written, however, according to the requirements of the procedural codes, it must take the form of a petition or a procedural document containing the position of the party on a particular issue.

The petition expresses a specific expression of will concerning the purely procedural part of the party to the trial, while the procedural document containing the position of the party in its petitioning part expresses the will to resolve the material issue, although in the most general terms it may act as a prerequisite for the application of the petition.

The petition or the position of the party expressed in the procedural document always has the form of a request, which must be answered by the court. As the court issues a ruling on the resolution of the petition, so the analysis of the party's position must be present in the court decision – the court cannot ignore the arguments of the persons involved in the case. The only exception is the custom, which is not fixed in the procedural code – the opportunity to leave the issue of consideration of the petition open. This dexterity of the court can give the judge time to make the right decision regarding the petition, especially in a situation where not all the circumstances of the case are known. However, in the end, the judge must allow the petition.

The situation when the request has no form, but is caused by the "necessity of the process", leaves more room for discussion. We can say that there is no request at all in this case, since there is no addressee. Consequently, communication at this stage is one–sided - from the court to the parties, in an imperative form. The "necessity of the process" is the last element of a legal structure with a consistent accumulation of elements, in which the list of elements remains open. The judge himself makes a decision based on his own conviction about the correctness of the conduct of the process when considering a particular case.

As is often the case in situations of interpersonal interaction, a judge can resolve a request from a person involved in the case based not only on a rational approach, but also on an emotional one. It is very difficult to predict the judge's reaction to the request, as it is quite rare for the parties to agree on the next stage of the process. The addressee must accurately determine the place and meaning of the message to the court in order to achieve a result.

Since most petitions are filed in the middle of the process, the judge does not have time to familiarize himself with the procedural document, and he will make a decision based on the situation. Nevertheless, this does not mean that the request should not leave a mark on paper – this is the duty of the party, and it is in its interests to provide the court with a document so that in the future this procedural legal fact can be reflected in the court decision.

The logic of the trial is structured in such a way that at the beginning of each court session, the judge asks about the need to resolve the petitions of the parties that impede the consideration of the case. Therefore, together with a short request for judicial guidance, the party must state the reasons and circumstances that served as the basis for the application. In this regard, a "pool" of documents will be very advantageous, which, although they have different grounds (for example, a petition and a response to a claim), will nevertheless be connected by a single semantic line. The party must convince the court that this is exactly what the next stage of the trial should be. It can be said that the legal fact, which is a document, is a draft court decision in terms of judicial guidance.

As in the classical theory of argumentation, the request to the court is best presented in the form:

1. Thesis (a statement whose truth or acceptability needs to be substantiated);

2. Argumentation (statements that are used as arguments to reach agreement with the proposed point of view);

3. Demonstrations (a way of connecting arguments and a proven thesis). ^{[7, p. 27]}

The eloquence of the addressee is of particular importance – oratory is highly appreciated among judicial lawyers, since all types of processes, with the exception of simplified proceedings, have an oral presentation.

There is a section in the theory of philosophy of language developed by L. Wittgenstein, J. Austin, J. Searle and G.L.A. Hart in the middle and end of the last century. L. Wittgenstein noticed in his early works that words, in particular names, denote the real things of the world around us. These names cannot be destroyed, even if the object that was in the real world has ceased to exist. For example, we know that there is a flower growing in our room, we can call it "flower", we can call it "Vitaly Flower", but if it dies, then a specific flower or "Vitaly Flower" will still remain in the world of words, thoughts and images. Thus, L. Wittgenstein concluded, "objects form the substance of the world," and the substance itself "is something that exists regardless of what takes place." ^{[8, pp. 2.021, 2.024.]}

Later, for legal discourse, G.L.A. Hart will call words that denote an object of the real world, for example, a flower, descriptive, and words that are not "tied" to the physical world of being, non-descriptive (ascretive). For example, a flower is a descriptive concept, and conscientiousness is an ascriptive one. V.V. Oglenzev, in his research work on the analytical philosophy of law, writes the following about non-descriptive (ascreptive) concepts: "therefore, a non-descriptive term should be understood not as a term that does not mean anything, but as a term using a non-standard type of designation in relation to the usual and the generally accepted way of defining the semantics of words. The usual, that is, descriptive, or, in a narrower sense, empirical term assumes a semantic connection between the term and the object to which it refers, in the form of an "ocular", "mirror" or "pictorial" metaphor. The term describes, reflects, and forms a mental image of the object or process it is talking about." ^{[9, P. 126]}

Thus, from the point of view of the philosophy of language, there is a justification for dividing legal facts into the material facts themselves (events or phenomena with which the rule of law connects the appearance, change or termination of a material legal relationship) and circumstances relevant to the case, with which the rule of law, although it connects the dynamics of a material legal relationship, nevertheless such circumstances have only a mental image of an object or process that cannot be recorded anywhere for subsequent use in civil and arbitration proceedings. Examples of circumstances relevant to the case are good faith, deception, a flawed expert opinion, an object that poses a threat to the life and health of citizens, etc.

G.L.A. Hart, who, following I. Bentham, questions the effectiveness of using the traditional method of definition by means of per genus et diferentiam of such legal concepts as "objective law", "subjective law", "responsibility", "state", etc. Despite the well-known common usage of these words, it is unclear because, in comparison with most common words, these legal terms are considered "anomalous" in various respects. Attempts to define these terms show that they do not have a direct connection with their factual counterparts, which most ordinary words have, for which we refer to this connection. ^{[10, pp. 535-558]}

It should be borne in mind that language as a form of communication is a means of communication and is possible only in human society. At the same time, the terms, structure and form used in jurisprudence make it possible to classify legal language into a special category, since each word in legal discourse has a strong connection with either a material or a procedural fact. It can be said that the legal language was created in order to describe events and phenomena as accurately as possible, without giving them any emotional coloring. In this way, legal language causes both boredom and respect, but law, as the art of kindness and justice ("Jus est ars boni et aequi" – the ancient Roman jurist Celsus), does not have the ability to make decisions through emotions. Nevertheless, it is possible to make decisions and act through words.

If we return to the civil procedure, we should pay attention to the change in procedural status through precisely described in practice, almost sacred expressions. "We file a motion to involve A as a co-defendant," "The Court, by its ruling, appoints an expert examination in the expert organization B," "The court proceeds to examine the evidence."

In the minutes of the court session, each such wording will mean an independent procedural legal fact that has changed the dynamics of the process in one direction or another. A competent trial lawyer always has a strategy for conducting a case, which he strives to implement in a court session. The strategy has the form of expression of procedural documents and an oral report to the court through the implementation of the principle of dispositivity. The commission or non-performance of any procedural actions is the responsibility of the party. By establishing procedural rules, the Civil Procedure Code and the Arbitration Procedure Code create a context within which the parties' speech is interpreted. It is difficult to imagine a situation when, when buying ice cream at a stall, a boy would tell the seller: "I submit a petition to impose the costs of buying ice cream on my father." Nevertheless, the phrase about assigning the costs of conducting a forensic examination to a party is understood by lawyers as the simplest and most obvious phrase during the process.

Thus, "any rule is based on the idea of obeying or following it." ^{[11, p. 84]}. G.L.A. Hart criticized the model of coercive orders of the sovereign, pointing out the need for a "recognition rule", according to which "wherever such a recognition rule is adopted, both private and official persons receive a reliable criterion for identifying the primary rules of duty" ^{[12, P. 63]}. As stated in the previous paragraphs, the right of recognition is a communication between the state and citizens, through which the law is legitimized.

Nevertheless, G.L.A. Hart distinguishes between a situation of an "order" from the state through the issuance of a law and a situation when an order is given by a robber. G.L.A. Hart describes a situation with a robber who, at the threat of his life, orders a citizen to hand over a bag to him, noting that "ordering people to do certain things is a form of communication, and it really involves "addressing" them, that is, attracting their attention or taking steps to attract it, but passing laws for people does not do that." Further, the scientist writes: "What is usually meant by those who say that laws are "addressed" to certain persons is that there are persons to whom a particular law applies, that is, from whom it requires to behave in a certain way. If we use the word "converted" here, we may not be able to notice the important difference between passing a law and issuing a personal order, and we may also confuse two different questions: "To whom does this law apply?" and "To whom was it announced?" ^{[13, pp. 15-16]}

In our opinion, this contradiction is eliminated by Federal Law No. 5-FZ of June 14, 1994."On the Procedure for the Publication and Entry into Force of Federal Constitutional Laws, Federal Laws, and Acts of the Chambers of the Federal Assembly" with the obligation to publish federal constitutional laws, federal laws, and acts of the Chambers of the Federal Assembly with their subsequent entry into force ten days after the date of their official publication, unless the laws or acts of the Chambers themselves establish a different procedure for entry their power.

Another aspect of G.L.A. Hart's reflections is important for us, in particular, that the robber's order does not contain a "recognition rule" on the part of society, such an order is condemned, as it violates the property right of the person who owns the bag, and also potentially poses a threat to the life and health of a citizen. In turn, laws are legitimate to the extent that they are recognized by society as socially justified limitations of the individual.

By creating rules for communication in court, the law also establishes the context, taking into account the specifics of each specific case. It would be at least unwise in cases of torts to report to the court about unjustified enrichment, therefore, the context in the most general form can be called: 1) procedural rules; 2) the subject and the basis of the claim.

J. Searle notes that "some rules regulate the forms of behavior that existed before them, for example, the rules of etiquette regulate interpersonal relationships, but these relationships exist independently of the rules of etiquette. Other rules do not just regulate, but create and define new forms of behavior. Football rules, for example, do not just regulate the game of football, but, so to speak, create the very possibility of such activity or define it." ^{[14, p. 58]}

This idea was subsequently developed by G.L.A. Hart, citing the example of the game of chess, stating that for children who do not know the rules of the game of chess, such a game will seem like just an arbitrary movement of pieces on a chessboard. Thus, a child who arbitrarily moves a piece does not actually make a move.

Next, we will try to figure out how the parties make their "move" in the lawsuit.

J. Searle focused his attention on the meaning of the speech act. The speech act itself consists of three levels:

1. An illocutionary act is an action that we perform by uttering a certain phrase (we can convince someone, ask, accuse, instruct);
2. A locative act is the act of pronouncing certain sounds or writing down certain icons on paper.;
3. A perlocative act is the effect of our utterance on the actions, thoughts, or emotions of listeners (our utterance may or may not convince the interlocutor, force him to do something, cause him irritation or boredom, etc.). ^{[15, p. 79]}

Thus, an illocutionary act is an intention to achieve a result that can be represented in the formula "X is considered Y". Thus, by submitting a request for an expert examination, we mean "let the court consider this request as the basis for the transition of the trial to the stage of expert examination." By filing a petition, the party is trying to influence the addressee of the speech act – the court.

Next, J. Searle points to the necessary part of the illocutionary act, the convention or "condition of sincerity." The essence lies in the absence of an internal and external contradiction between what a person thinks and what a person declares to the addressee. You can't say, "I'm applying for an expert examination, but I lied."

In addition to context and sincerity, another part of the illocutionary act is needed – the form. Law as a science, art, and craft is very formalized and requires that the right words be spoken at the right time and in the right place. In particular, leaving the deliberation room, the judge begins to announce the decision on the case with the words "the decision on the case is announced in the name of the Russian Federation ...", without which the decision will not be valid, at the same time skipping the stage of explaining the rights to the parties before the start of the trial in the form prescribed by the procedural code will be a violation of the procedure for holding a court session and in In some particularly sensitive cases, this is the basis for revoking a court decision (article 165 of the Code of Civil Procedure of the Russian Federation). According to paragraph 2 of Article 154 of the Arbitration Procedure Code of the Russian Federation, the persons participating in the case and other participants in the arbitration process address the arbitration court with the words: "Dear court!". They give their explanations and testimony to the court, questions to other persons involved in the case, and answers to questions standing up. A deviation from this rule may be allowed only with the permission of the court.

J. Searle distinguished the following classes of illocutionary speech acts:

• Representations – place the responsibility on the addressee for the truth of the speech act (for example, an oath);
• Directives are directed at the addressee in order to encourage the latter to do something (for example, to ask);
• Commissioners – impose responsibility on the addressee to follow a certain line of conduct (for example, "we will request a postponement of the court session to familiarize ourselves with the defendant's position");
• Expressive – describe the psychological attitude of the addressee to the addressee (for example, to thank);
• Declarations – a speech act establishes the state of affairs (for example, "to satisfy claims–).

In civil and arbitration proceedings, an example of a representative would be an expert's signature on criminal liability for perjury, a directive would be a party's petition, an italicized statement would be the party's expressed intention to follow a line of conduct, an expressive greeting from the judge and his secretary, or gratitude to the court before being removed from the courtroom, a declaration would be any decision. courts on a specific issue.

In turn, J. Austin identifies the following five groups of verbs according to their illocutionary force:

• Verdicts are the implementation of a value judgment (for example, "we recognize the claims in part ...", "the expert evaluates the damage in the amount of ...");
• Excersivity – the manifestation of influence or the exercise of power (for example, "the amount of damage is confirmed by an expert opinion");
• Commission – making a commitment or a statement of intent (for example, signing an expert's statement of responsibility for giving false testimony);
• Behaviors – an expression of an attitude (for example, "we do not trust the testimony of a witness due to our interest in the outcome of the case");
• Expositions are explanations of the grounds, arguments, and messages (for example, "a decision is lawful if it is made in strict compliance with the rules of procedural law and in full compliance with the rules of substantive law that are applicable to this legal relationship, or based on the application, if necessary, of an analogy of law or analogy of law"). ^{[16, P. 120]}

Another important aspect that G.L.A. Hart drew attention to is the repealability of legal concepts. For example, we declare that the ownership of the car belongs to A. This speech act is a statement of fact. Nevertheless, confirmed by proper evidence, this statement about the fact will move into the field of law, and then it will already be a statement about the law. If the evidence of A's ownership of the car is not presented to the court or is refuted by the other party, then the "cancellation" of the statement will occur – the court recognizes the ownership of the car for person B.

The given example of a car is an example of a constative (statement), according to J. Austin. In turn, the dynamics of the civil process occurs through performances that cannot be "canceled." "When uttering a perfomative utterance, we always perform some act, or, equivalently, perform some action that, apparently, we could hardly have performed in any other way, at least with the same accuracy." ^{[17, p. 23]}

Thus, procedural legal facts arise through perfomatives, the distinctive features of which we have described above. Let's remember them:

the context of the judicial process, consisting of procedural rules, the subject and the basis of the claim;

the condition of the addressee's sincerity;

the power or authority of the addressee to change the procedural legal relationship;

perfomatives, as applied to civil and arbitration proceedings, cannot be "canceled".

One more important and final quality of performances in the civil process should be considered, which follows from the "irrevocability" of this speech act. A classic example of performance art is given in the literature: the captain of a ship breaks a bottle of champagne on the deck and announces "I name you Streaky!" The conditions of context, sincerity, and authority have been met. Nevertheless, A.A. Melnikov drew attention to the following circumstance: "if a person with champagne called a ship by one name (for example, he made a slip of the tongue, joked or made an indistinct sound), and it went by another name in the documents, this will not change how the ship is recorded in the documents. That is, the statement of the guy with the champagne does not contain a universally valid naming of the ship, the connection between the statement and the naming is ultimately accidental." ^{[18, p. 299]}

Let's consider this situation in relation to the judicial process – how did the legislator ensure the responsibility of a person or his representative for "actions through words"?

First of all, we should address the importance of an audio protocol in the process. This technology allows you to accurately correlate the actions that occurred during the court session with the consequences that they produced.

According to article 155 of the Arbitration Procedure Code of the Russian Federation, during each court session of the arbitration court of the first instance, as well as when performing certain procedural actions outside the court session, recording is conducted using audio recording means and a written protocol is drawn up. At the same time, it is important to note the priority of the audio protocol, since the written protocol is an additional means of recording process data, including oral statements, petitions of persons involved in the case, consultations of specialists, agreements of the parties on the factual circumstances of the case, stated requirements and objections.

A similar regulation is established in Chapter 21 of the Code of Civil Procedure of the Russian Federation, with the exception of the priority of the audio protocol. Thus, the problem posed by Melnikov A.A. is solved by perceiving the speech of the parties during the court session through subsequent listening to an audio protocol.

Summarizing the results of this study, it should be noted that the types of speech acts used in the course of communication are possible only if a certain context and ritual are observed. Communication itself is the operation of images of objects using descriptive and non-descriptive concepts. But since communication itself is inherently "virtual," it doesn't matter what concepts (descriptive or non-descriptive) the person involved in the case uses during the court session. The figurative field itself, in which information is transmitted through speech acts, is possible only under the conditions of the choice of the person carrying out the communication. We can say that the law as such is secondary to the variability of events, however, using the example of the judicial process, we have shown how the potential variability of events becomes a judicial reality through actions with the help of words. It should be borne in mind that words are a reflection of a thought that has meaning, and it is at the moment of formation of a thought loaded with meaning that a person's personal right to express it is formed through a speech act, which, in turn, leads to a change in reality according to such a thought.