Language and the Law

John Peter Gibbons

• Publisher: Routledge
• Year: 2014
• eBook ISBN: 9781317894520
• Topic: Languages & Linguistics
• Subtopic: Linguistics
• Index: Languages & Linguistics

Explains and describes the ways that language use in the legal system can create inequality and disadvantage. It examines the three main areas where the two intersect: the central issue of the language of the law; the disadvantage which language can impose before the law, and forensic linguistics - the use of linguistic evidence in legal processes. Each section of the book is preceded by an introduction by the editor which sets the paper within a conceptual framework. Lawyer's opinions are not neglected even though the collection is written mainly by linguists. The section concludes with a lawyer's response, in which a prominent lawyer with a particular interest in the content of the section responds to the papers.

PART I

LANGUAGE CONSTRUCTING LAW

INTRODUCTION

Language constructing law

John Gibbons

Goldman in his chapter for this book makes the very important point that many legal concepts, such as accident and liability, are based upon concepts which appear universal across human languages, for instance happenings which have an agent and those which do not (agentive and non-agentive happenings are grammaticalised as transitivity or ergativity). The basic concepts of the rights and obligations of a member of a community are deeply embedded in the fabric of language itself, and existed before there were codified laws. Furthermore, the concepts which now construct legal systems such as ‘guilt’ and ‘murder’ are available to us only through the medium of language. There is then a very important sense in which language constructs the law (hence the title of the first part of this collection).

Laws are in essence attempts to control human behaviour, mainly through a system of penalties for law breaking. The law exists to discourage murder and theft, and bad faith in business dealings among other offences. There are two main aspects of the law – the legal code, and legal processes. The legal code is not designed to cover a single instance of human behaviour, but rather a range of related behaviours in a delimited range of situations. The main problem is saying neither too much, and thus having an oppressive legal code, nor too little, and so licensing instances of behaviour that are unacceptable. This is of course very much a language problem. Legal proceedings are usually concerned with testing the applicability of the generalisations found in the legal code to individual instances of behaviour or to particular cases. This is managed with very small exceptions through language, so for example trials are linguistic events. Language is then central to the law, and law as we know it is inconceivable without language. Many lawyers pride themselves upon their mastery of language, and regard such mastery as a critical skill for legal professionals.

The first part of this book examines this relation between language and the law, in particular the nature of the language of the law and the sources and reasons for this nature. Maley's chapter is given first because it presents a masterly survey of the current uses of language in the law, thereby framing all the chapters which follow. I shall return to it repeatedly in my discussions. Of particular note is Figure 1.1 which summarises and clarifies the various text and discourse types encountered when analysing the language of the law.

The chapters in Part I illustrate various phases in the development of the language of the law, as these mirror literacy development in the culture of which the law is part. Cultures can be seen as moving through pre-literate, literate and post-literate stages (sometimes more than once, as seems to have happened in Western Europe where the literate Roman Empire was replaced in many places by largely illiterate cultures until the Renaissance). The chapters which constitute Part I range across these stages as follows:

Pre-literate	Transition	Literate	Transition	Post-literate
Goldman	Danet and	Maley	Pearson and	(Danet and Bogoch)
	Bogoch	Bhatia	Berch
		Harris

THE PRE-LITERATE STAGE

Goldman's chapter describes aspects of a pre-literate legal system. It shows that there are well-established formalised social processes for legal disputation through which judgments are obtained. These do not appear to be different in type from other decision-making processes of a political or administrative type. Furthermore, while there is a discourse or genre for disputation, Goldman makes it clear that there is not a specific legal register or jargon. In discussing the absence of a defined term for ‘liability’ he writes ‘None of the terms … can be said to represent some specially adapted or developed register’. Instead he demonstrates most convincingly that the resources of everyday language are used to express this complex concept. One characteristic of the law in pre-literate cultures is the relative lack (although not a total absence) of codification of the law. This means that few concepts have undergone the process of re-ification (usually nominalisation) into specific legal terminology which is typical of literate societies. Goldman also shows how even trained anthropologists can be sufficiently ethnocentric as to mistake the absence of codification for the absence of the concept.

THE TRANSITION TO LITERACY

It is Danet and Bogoch's chapter which most directly addresses the relationship between literacy and the language of the law. They examine the development of the language of wills in a society where literacy was becoming more established, namely Anglo-Saxon England. They plot the changes which occurred as oral wills became written. As much work in this area has already shown (see, for example, Tannen 1982), the transition involved a movement away from dependence on immediate physical context to much lower context dependency. Danet and Bogoch also uncover a change in the functionality of written texts, from being an adjunct to and record of the spoken text, to the modern condition where it is the written text which actually performs the function of willing property. The linguistic consequences of these developments are several, for example in a spoken will assumptions can be made about shared knowledge – those present will know when the will was made, and what property the testator has. In a written will such assumptions are less valid, so such details as dates, and specific details of property must be included. Those present at an oral will would also naturally be addressed directly, using for example the second person pronoun, while this is less appropriate in the more objective written will. The acceptance of the increased speech act functionality of written will, which is noted also in Maley's chapter, makes unnecessary the curses used to strengthen oral Anglo-Saxon wills. Increased functionality is also manifested through the development of a stable text type or genre. This is predictable, since Martin (1992) and others have established that genres develop in order to perform specific socio-cultural functions. Danet and Bogoch show that neither the presence nor the ordering of the stages of wills had fully stabilised in Anglo-Saxon England, each seems to be generated afresh with little of the uniform routinised language of the modern written will – in other words the codification process was not complete. This lack of a codified genre to perform the function of bequeathing is also reflected in meta-comments upon the text itself. In their discussion section Danet and Bogoch arrive at the important conclusion that without acceptance of the performativity and conventional codification of written legal documents the systems of written law which have become the current international standard would be impossible.

THE LITERATE STAGE

The advantages of codifying law, precedent and other legal documents in a stable written form are obvious. It means that the legal system is less dependent upon the (possibly flawed) memories or judgments of individuals. Halliday (1985a&b) suggests that some of the linguistic consequences of written codification are increased nominalisation, grammatical metaphor and lexical density. Increased nominalisation entails nouns replacing verbs, which is related in turn to grammatical metaphor, since processes (e.g. ‘to pay’) which are most naturally expressed as verbs often become nouns (e.g. ‘the payment’). An advantage of this re-ification of processes and actions is that it makes them much easier to organise into an argument. It also means that they can be qualified and modified more easily – adjectives are more productive and plentiful than adverbs, verb participles such as ‘intended’ and ‘referred to’ can be used, and nouns can modify other nouns (e.g. ‘service payments’) much more freely in English than one lexical verb can modify another lexical verb (?paid to serve ?paid for serving). In legal documents these tendencies are often exploited to produce extraordinarily complex noun phrases – Crystal and Davy (1969: 205) give the following example: ‘The payment to the owner of the total amount of any instalment then remaining unpaid of the rent hereinbefore reserved and agreed to be paid during the term …’

Halliday (1985a) also suggests that increased complexity at the phrase level is usually accompanied by reduced syntactic complexity in the sentence or clause complex. Unfortunately, unlike scientific English, the language of the law appears to have the worst of both worlds, combining complex phrases with complex sentence syntax. Both Maley's and Bhatia's chapter provide examples from legal documents and explanations of this, and elsewhere (Gibbons 1990) I have detailed the syntactic complexity of police cautions. As Bhatia's chapter suggests, the reason for this complexity appears to be that legal language is often trying to cover all possible combinations of conditions and contingencies. Language complexity increases greatly when an attempt is made to unify all these within the confines of a single sentence. The pursuit of precision has also led to both retention of archaic relics of Norman French and Latin such as ‘corpus delicti’ and ‘demise’ to create specialised terms, and the agglomeration of synonyms in search of semantic exactitude, for example ‘give, devise and bequeath’ (compare the elegant simplicity of Danet and Bogoch's Anglo-Saxon wills) ‘cease and desist’ and ‘fit and proper’. Bhatia's chapter, and Danet (1980a) provide many other illustrations of the complexity of the language of the law.

Unfortunately, the pursuit of precision has produced obfusca-tion. This linguistic complexity has met widespread criticism from lawyers (see the Law Reform Commission of Victoria 1987), the public at large and linguists (see, for example, Labov and Harris's chapter in this volume). It has been ridiculed by satirists as varied as Jonathan Swift (Gulliver's Travels), Charles Dickens (Bleak House) and Groucho Marx (Animal Crackers). Its lack of intelligibility is well established (see Charrow and Charrow 1979, and Labov, this volume). The response has been to attempt to simplify the language, either in an ad hoc fashion (see Philips 1985) or in a more organised way through the Plain English movement (see Danet 1990; Eagleson 1991; and Maley's comments, this volume).

The most developed area in the study of the contemporary language of the law is not written texts however, but the language of the courtroom. Maley's chapter summarises much of the important work done by O'Barr and his associates at Duke University, where there is a continuing programme of research into this topic, and by researchers such as Atkinson and Drew (1979). Maley also provides fresh insights into courtroom language from genre analysis. A main theme that emerges from such work (see Maley) is the great disparity of power within the courtroom, in particular between the legal professionals on the one hand, and the general public, particularly plaintiffs, defendants and witnesses, on the other. This is mainly a product of the social situation in the courtroom, but it is also in part a result of the use of the complex legal language discussed above. These disparities in power are both revealed and imposed through language.

Disparities in power are not limited to the courtroom...

Table of contents

• Cover Page
• Half Title page
• Series page
• Title Page
• Copyright Page
• Contents
• List of Contributors
• General Editor's Preface
• Acknowledgements
• Part I. Language Constructing Law
• Part II. Language and Disadvantage before the Law
• Part III. Forensic Linguistics
• Bibliography
• Index