موضع گیری و مشارکت جویی در نظریه های داوری در دادگاه خانواده : جستاری در گفتمان کاوی قضایی (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
پژوهش حاضر به بررسی و تشریح فرایند موضع گیری و مشارکت جویی در نظریه های داوری مربوط به دادگاه خانواده بر اساس چارچوب پیشنهادی هایلند (2008) می پردازد. در پرونده های مربوط به طلاق، قاضی از هر یک از طرف ها (زن و شوهر) می خواهد که یک داور معرفی نمایند. داور موظف است قضاوت و نتیجه بررسی های خود از وضعیت هر یک از طرف ها را در قالب یک نظریه به قاضی ارائه دهد. در جستار حاضر ۳۶ نظریه داوری برای بحث و بررسی انتخاب شد. ۱۸ نظریه مربوط به داورهای منتخب طرف ها است که نظریه های غیر تخصصی و ۱۸ نمونه مربوط به نظریه داورهای منتخب دادگاه است که نظریه های تخصصی نام می گیرند. پس از بررسی داده ها براساس رویکردهای کمی و کیفی چنین محرز شد که نشان گرهای موضع گیری و (به نسبت کمتری) مشارکت جویی نقش محوری در شکل گیری گفتمان نظریه داوری دارند، به میزانی که به ازای هر 26/59 واژه در پیکره یک نشان گر موضع گیری و مشارکت جویی وجود دارد. همچنین، مقایسه نظریه های تخصصی و غیرتخصصی نشان می دهد که نظریه های تخصصی دارای کفایت توصیفی و تبیینی بیشتری هستند.Stance taking and Engagement in arbitration theories in the family court: An inquiry in judicial discourse analysis
The present study examines and describes the process of stance-taking and engagement in the arbitration theories related to the family court grounded on Hyland’s (2008) approach to voice and stance-taking. In divorce cases, the judge asks each of the parties (wife/husband) to nominate an arbitrator who is supposed to present the result of his/her considerations on each of the parties to the judge in terms of a theory. In this research, 36 arbitration theories were selected for discussion and analysis. Eighteen theories are related to the arbitrators selected by the parties, which are non-specialist theories, and eighteen cases are related to the theory of court-selected arbitrators, which are called specialized theories. After examining the data based on quantitative and qualitative approaches, it was found that stance markers and (to a lesser extent) engagement markers have a pivotal role in the formation of the discourse of arbitration theory. This goes to the extent that for every 59.26 words in the corpus, there is one stance and engagement marker. Likewise, the comparison of specialized and non-specialized theories shows that specialized theories have more descriptive and explanatory sufficiency.Keywords: Arbitration theory; Engagement; Family court; Judicial discourse Analysis; Stance. IntroductionStance markers can be considered as one of the most influential discursive-linguistic media through which subjects can choose to represent their views in different contexts. For instance, judicial and trial context is included in cases and contexts where taking a stance, as a discursive act, can play a significant role in the evaluation, interpretation and judgment of a discursive and/or non-discursive events. Although stance-taking has been studied in a wide range of discourses (Abdi, 2010; Biber, 2006; Hyland, 2005, 2008), the study of its various strategies and functions in judicial discourse has not received much attention and it is of undeniable importance. The reason for this importance is that in judicial discourse, taking a stance in relation to an issue plays a key role in arranging and structuring arguments and perceptions to attract the opinion of judges. Therefore, in this research, we intend to examine the phenomenon mentioned in the arbitration reports in family cases. In cases where couples refer to the family court for divorce, the court refers the issue to the arbitrator to create peace and compromise between them and finally issues a decision based on the arbitrators' point of view. In this connection, the Article 28 of the Family Protection Law states that “after the issuance of the order to refer the matter to arbitration, each of the parties is obliged to introduce one of their relatives as an arbitrator to the civil court within one week from the date of notification.is the arbitrator should be at least thirty years old, male, married and familiar with Sharia, family and social issues.” Addressing the divorce matter to arbitration process, from appointing an arbitrator to announcing his opinion to the court, is a time-consuming process, and it also imposes costs on people. On this account, whether such theories can be effective and functional recognizing the necessity of long stages during the judicial process is an enquiry that has to be taken into account. Furthermore, insofar as the arbitration has to be impartial and unbiased, the central puzzle to be resolved is that how one can depend on the impartiality of the theories submitted to the judge give the fact that the arbitrators are introduced by the divorce parties? To put it differently, it is of indubitable importance to ask whether family ties and relations will influence evaluations and theories? Considering issues as such can validate the importance and necessity of the current research. Based on the material presented in the current research, we will investigate taking a stance in arbitration opinions. To this end, we will employ Hyland’s approach (2008) to stance-taking engagement. Therefore, this research aims to provide justifiable answer the following queries:What, discursive strategies and linguistic tools are constitutive of stance-taking and engagement?What is the frequency of linguistic tools and discursive strategies of stance-taking and engagement in arbitration reports? Materials and methodsThe corpus of the present research consists of 36 arbitration theories extracted from the divorce cases of the family court of Doroud, a city in court of Doroud (a city in Lorestan Province) After examining 86 cases, we opted eighteen expert and non-expert theories of arbitration for analysis. The total number of words in the corpus is 7391. The present research examines and analyzes the data with a descriptive and analytical approach based on quantitative and qualitative components. For the qualitative aspect, we recruited Hyland's (2008) approach to stance-taking and engagement. Concerning the quantitative aspect, we used the Antconc (3.5.8) concordance software and statistical analysis. In so doing, through the Antconc software, we obtained the frequency of the words in the corpus. In the next step, based on Hyland's (2008) proposed tools to study stance and engagement items and instances, we classified them according to the research objectives. We also used statistical analysis to obtain the raw frequency and measure the frequency of the desired components in the scale of 1000 words. It is worth mentioning that during the rewriting of the reports, all the personal information of the referees, feuding parties (wife/ husband), have been changed in order to protect the parties’ private information. Discussion and conclusionsFor the quantitative examination of our data, first, the interaction indicators were studied in the form of raw frequency and then in the scale of 1000 words. The findings indicate that arbitrators have used (381) stance and (57) engagement elements in their arbitration reports in their interaction with the addressee (judge). The frequency of interaction elements in the whole corpus is (438) and the frequency in the scale of 1000 words also shows that for every (59/62) words, a stance and engagement marker is used, which means that the interaction elements (both stance markers and engagement markers) form an important part of the discourse of arbitration theories. Table 1- Frequency of stance markers in arbitration reports (total 7391words).frequency in 1000 wordsraw frequencystance markers11/7787hedges13/3999boosters11/5085attitude markers14/88110self-mention51/54381total Table 2- Frequency of engagement markers in arbitration reports (total 7391words).frequency in 1000 wordsraw frequencyengagement markers4/8736reader mention00asides2/8421Shared knowledge00directives00questions7/7157total As it can be seen in table (1), among the characteristics related to stance-taking, self-mention elements and attitude markers respectively have the highest and lowest occurrence rates in the corpus.Examining the frequency of each of the linguistic elements of stance and engagement confirms that the elements of self-mention and attitude markers have the highest and lowest occurrence rates among the types of ways of expressing stance, respectively. Self-mention is a strategy that the author relies on to highlight his presence in the text, and it is observed in the corpus of the present research in the form of personal pronouns and present identifiers of the first person singular (and sometimes plural). The reason why this indicator is used more than other indicators is that in the theories of arbitration, the arbitrator tries to reflect the actions taken towards couples in order to create a compromise between them in his theory based on the responsibility assigned to him by the judge. This way also validates the result of his arbitration. All stance markers, including the use of the first-person pronoun, are tools for persuading the addressee (judge). Regarding the attitude markers, it should be said that the relatively low frequency of this type of markers in comparison with other markers is due to the fact that sometimes it is not possible to have a clear and decisive boundary between the types of markers, because for example, a linguistic structure may in a context show a positive attitude and, in another context, it expresses a negative attitude. For example, the use of reporting speech in scientific genres can increase the validity and accuracy of the author's statements, while in the theories of judgment, they are considered a form of doubt and indirectly show the author's uncertainty about the statements made. In the corpus of the current research, the frequency of positive markers was summarized in only three cases, the reason for which is the specific discourse of these theories, because the arbitrator’s opinion is usually considered when the probability of compromise between couples is low. The negative attitudes in all the reports have three main purposes: targeting the character of the couples, the consequences of not issuing a divorce decree, and announcing the arbitrator’s personal opinion. Regarding engagement markers in the corpus, we can only consider two types of reader pronouns and shared knowledge, because other engagement strategies such as questions, directives, and asides are considered to be a kind of face threatening linguistic actions, in such a way that they do not consider the position and face of the judge as a powerful participant.
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