Sociolinguistics and the Legal Process

Diana Eades

• Publisher: Multilingual Matters
• Year: 2010
• ISBN:
  9781847696779
• Topic: Languages & Linguistics
• Subtopic: Sociolinguistics
• Index: Languages & Linguistics

Sociolinguistics and the Legal Process is an introduction to language, law and society for advanced undergraduate and postgraduate students. Its central focus is the exploration of what sociolinguistic research can tell us about how language works and doesn't work in the legal process. Written for readers who may not have prior knowledge of sociolinguistics or the law, the book has an accessible style combined with discussion questions and exercises as well as topics for assignments, term papers, theses and dissertations. A wide range of legal contexts are investigated, including courtroom hearings, police interviews, lawyer interviews as well as small claims courts, mediation, youth justice conferencing and indigenous courts. The final chapter looks at how sociolinguists can contribute to the legal process: as expert witnesses, through legal education, and through investigating the role of language in the perpetuation of inequality in and through the legal process.

Part 1

Introduction

1

Using sociolinguistics to study the legal process

1. What is sociolinguistics?

2. What is meant by ‘the legal process’?

3. Some basic sociolinguistic principles

4. Introducing spoken language in the legal process

5. What can sociolinguistics contribute to the study of the legal process?

6. The impact of written legal language on spoken legal language

7. Different kinds of sociolinguistic analysis

8. Transcription

9. Different legal systems around the world

10. Outline of the book

11. How to use this book

12. Notes on terminology

13. Anglocentric orientation of this book

Assignments and further research

Using sociolinguistics to study the legal process

Language is central to the legal process: written laws, judicial decisions, police interviews, competing claims in a dispute, courtroom evidence, legal argument, mediation hearings, all of these events or products of the legal process are carried out through language, whether written or spoken or both. Lawyers have to be ‘good with language’ to succeed in their profession. Indeed, some might argue that success in any legal process depends to a considerable degree on the linguistic dexterity of participants, including witnesses, litigants and legal professionals.

This book is intended as a textbook for a university or college postgraduate or advanced undergraduate course in which sociolinguistics is used in an examination of the legal process. Some students will know nothing about the legal process, and some will know nothing about sociolinguistics. This chapter aims to address these two gaps at a fairly introductory level, so students from both backgrounds can go on to use the substantive chapters as part of the same course. Further background about sociolinguistics and law will be provided as necessary throughout the text.

1. What is sociolinguistics?

In the simplest terms, sociolinguistics is the study of language use in its social contexts. While linguistics primarily analyses the structure of language, sociolinguistics analyses language function and use. Modern sociolinguistics has developed since the 1960s, and most of the founders of various sub-disciplines within sociolinguistics are still alive today. Sociolinguistics often requires an understanding of principles and methods from linguistics, and there is often no hard and fast boundary between sociolinguistics and linguistics. Strictly speaking, some of the approaches, studies and publications discussed in this book would be described as ‘(socio)linguistic’, or ‘linguistic and sociolinguistic’. But to avoid repeated clumsiness, I will use sociolinguistics to refer to the analysis of language function and use, with the understanding that this often also incorporates some study of language structure. If you do not have a background in sociolinguistics, you are recommended to read Holmes (2008).

2. What is meant by ‘the legal process’?

All societies have systems of law which govern acceptable behaviour and which comprise social mechanisms for dealing with disputes. It is common to distinguish between formal and informal legal systems, just as between formal and informal education. This book is concerned with language in formal legal systems. For reasons explained in Section 9 below, the primary legal focus will be the common law legal system found in countries such as Australia, England, New Zealand, the United States and most of Canada. Legal anthropology mainly examines informal legal systems (sometimes referred to as ‘customary law’), and readers interested in pursuing this area should start with Conley and O’Barr’s (2005: Chapter 6) introduction to the area. The terms ‘legal system’ and ‘legal process’ can often be used interchangeably. I will mainly refer to the legal process because the interest of sociolinguists is in what happens in the process, specifically what people do in interactions that take place within the legal system.

3. Some basic sociolinguistic principles

Sociolinguistics is concerned with the complex relationship between language and society. There are three main ways in which this relationship can be conceptualised. First, much sociolinguistics in the 1960s–1990s proceeded from the axiomatic assumption that language reflects society. Such an assumption would view the hierarchical ways of addressing people in the courtroom – such as calling the judge your honour – as a reflection of the hierarchical authority structure of courtrooms. Second, an influential axiomatic assumption reverses the direction of the relationship between language and society, so that the hierarchical authority structure in courtrooms would be seen partly as the effect of such language usage as calling the judge your honour. This view that language determines aspects of society, or culture, or even thought, is associated with the work of early 20th century American linguistic anthropologists Benjamin Lee Whorf and his teacher Edward Sapir, and is often referred to as ‘the Whorfian hypothesis’.

Like so many other earlier dichotomies in the social sciences, these two opposite ways of thinking about the relationship between language and society have been deconstructed in the later part of the 20th century. Twenty-first century sociolinguistics assumes a dynamic and reciprocal relationship between language and society, so that language usage at the same time both reflects and shapes society. This third view can be seen as part of the wider approach in the social sciences, in which the earlier dichotomy between social structure and agency is also rejected, in favour of an understanding that the two are inseparable: it is the agency of individuals in social groups which creates, shapes, maintains, reinforces and changes social structures, which in turn limit and enable the agency of individuals. This axiomatic understanding of society underpins the best sociolinguistic work on language in the legal process. Indeed, the legal process is an ideal institutional site for the examination of this dynamic interrelationship between social structure and agency, as we will see. To understand language usage in any specific legal context is impossible without an examination of structural institutional aspects of the legal system. On the other hand, sociolegal studies of the law can be greatly enriched by an examination of situated language practices in specific legal contexts.

The social contexts of language use are of central importance in any sociolinguistic study. This book is organised according to the overarching legal contexts of courtrooms in Part 2, police interviews in Part 3, and then in Part 4, the lesser researched legal contexts of lawyer– client interviews followed by informal and alternative legal processes. In all of these contexts, the main focus will be on spoken language.

One of the basic investigative methods in the descriptive phase of sociolinguistic research is to look for patterns in language use. We constantly ask what happens in what contexts, with what people, and what results. We also pay attention to unusual occurrences, as they can be as illustrative of language use as regular patterned behaviour. At the analytical phase of research we ask why people use language in these ways in these contexts, and at the interpretative phase, we ask whether and how these patterns of language use matter.

Spoken language is characterised by variation. This variation is studied by linguists and sociolinguists along two dimensions: diachronic and synchronic. Diachronic variation is best summed up by saying that all languages change over time. You don’t have to do linguistic analysis to observe that English has changed since Shakespeare’s time. Even within three generations of your own family, you can probably observe some of this diachronic variation. It’s often easiest to notice in terms of vocabulary change, but linguists also observe changes in grammar, accent, meaning and language use. In my family, some members of the generation born in the 1920s pronounce the first sound in where or white differently from the first sound in were or wide. No one in the younger generations of our family does this.

Synchronic variation refers to differences in the ways in which language is used in the same time period, and is best summed up by saying that people speak differently in different contexts. If you have never observed this variation, try paying close attention to, or audiorecording, a friend in two quite different contexts (with their permission, of course). The variation is easiest to observe where these contexts differ considerably in terms of formality, for example in a bar and in a formal interview.

It is undeniable that all languages are constantly in a state of change – although there is no consistency in the extent to which such change in different languages is observable to the untrained analyst. Analogous in some ways to the situation with living organisms, when a language ceases to change, this is a fairly good indication that it is dying. But the popular view, especially among educators in some societies, is that language change can be prevented, and that it is a sign of slipping standards, or even moral decline. Linguists such as Lippi-Green (1997) have written about the problems which arise from such myths about the nature of language.

It is not just spoken language which is always in the process of change. The same is true of written language, although the rate of change and the extent of synchronic variation can be much less significant than with spoken language. But nevertheless, we can still see synchronic variation, for example depending on the formality of the written text. Letters between family members differ in grammatical structure and word choice from legal statutes. And examination of either of these types of writing over a few generations will provide evidence of diachronic change in written language.

Lack of understanding about differences between spoken and written language, and about variation in language use can be important in the legal process, as we will see in Section 2 of Chapter 7 and Section 4 of Chapter 8, respectively. There is a widespread popular view that the way in which language is written, especially after being carefully checked and edited, is ‘correct’. In this view, any ways in which spoken language deviates from such written norms amount to errors. Such a prescriptive view – how language should be written or spoken – reflects beliefs and value judgements about how people should act. But (socio)linguistics, for the most part, avoids prescriptive views and concentrates on description – describing the way that language is actually written or spoken. I say that this is what (socio)linguistics does for the most part, because there are some areas in which our discipline does venture into prescri...