Performatives in Argentine Supreme Court Dissents: A Jurilinguistic Proposal for Civilian Change Based on the American Common Law

This article explores a linguistic defect in how Argentine Supreme Court dissents are written. The reader of these dissents has a hard time distinguishing between a majority opinion and a dissenting opinion, because dissents are written “as if” they were deciding the case. The confusion results from the use of performative language in dissents when adherence to reality and a plain-language approach require modal verbs reflecting the language of suggestion. This is actually the way dissents are expressed in the United States, the jurisdiction from which the Argentine Supreme Court copied its constitutional design.

To make the case against the use of alleed performative language in Argentine Supreme Court dissents, the article explores the differences in how the civil law and the common law have traditionally treated dissents, introduces the basic elements of British philosopher J. L. Austin’s speech act theory, applies Austin’s concept of performatives to dissents, shows examples from the supreme courts of both Argentina and the United States, and finally makes the plain-language case as another compelling argument for clarity in dissents to propose the abandonment of a practice that is not truthful to reality and seriously limits the understanding of the Argentine Supreme Court decisions. The whole discussion is presented as a jurilinguistic exercise, combining law and language analysis.