27.3211, Review: Discipline of Ling; Discourse: Solan, Shuy, Ainsworth (2015)

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Subject: 27.3211, Review: Discipline of Ling; Discourse: Solan, Shuy, Ainsworth (2015)

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Date: Mon, 08 Aug 2016 11:34:29
From: Piotr Węgorowski [wegorowskip at cardiff.ac.uk]
Subject: Speaking of Language and Law

 
Discuss this message:
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Book announced at http://linguistlist.org/issues/26/26-4799.html

EDITOR: Lawrence  Solan
EDITOR: Janet  Ainsworth
EDITOR: Roger W. Shuy
TITLE: Speaking of Language and Law
SUBTITLE: Conversations on the Work of Peter Tiersma
SERIES TITLE: Oxford Studies in Language and Law
PUBLISHER: Oxford University Press
YEAR: 2015

REVIEWER: Piotr Węgorowski, Cardiff University

Reviews Editor: Helen Aristar-Dry

SUMMARY

“Speaking of Language and Law: Conversations on the Work of Peter Tiersma”
edited by Lawrence M. Solan, Janet Ainsworth and Roger W. Shuy is a tribute to
the life and work of Peter Tiersma, who passed away a year before the
publication of the volume. It contains 17 short excerpts from Tiersma’s
writings, along with commentaries from 32 scholars from the fields of law and
(forensic) linguistics. The editors express hope that “the excerpts and new
contributions stands as a testament both to the vitality of the inquiry into
questions of language and law and Peter Tiersma’s contributions to it” (p.
xiii). The volume then aims to bring back some of Tiersma’s main ideas and
extend them in the collection of essays. As such, it would be suitable for
researchers working in the areas of language and law, serving as a reminder of
Tiersma’s work alongside responses generated by it. At the same time, it
brings together a number of key writings and would be of interest to
researchers new to the field, graduate students, or perhaps even
undergraduates of higher levels, as a way of introduction to his wide-ranging
work.  The volume includes a complete bibliography of Tiersma’s works, while
name and subject indexes at the end facilitate navigation through the book.
The book is divided into six different parts, two of which also contain
sub-sections. The thematic groupings are not only helpful for the reader but
also give testimony to the breadth of Tiersma’s scholarship.

PART I Legal Language and Its History 

The book opens with Chapter 1 “On the Origins of Legal English” which is an
excerpt from Tiersma (2012). Chapter 2 “Why is Legal Language So
Conservative?,” reprinted from Tiersma’s 1999 book Legal Language, discusses
the use of archaic forms. Chapter 3 “Writing the Law in England,” which is
taken from the later book by Tiersma (2010), also looks at the history of law
and the way it moved from oral tradition to written statutes. Chapter 4 “Some
Myths about Legal Language”, an excerpt from Tiersma (2006), deals with the
problem of writing law in plain English and the challenges that this attempt
brings. In the first piece of commentary on Tiersma’s work in the volume
Frederick Schauer tackles in Chapter 5 “On the Relationship Between Legal and
Ordinary Language” the distinction between language of the law and law itself.
In Chapter 6 “Legal Language and its History” Ronald Butters reflects on the
history of legal language and points out that technological advances will
necessarily bring about change too. Chapter 7 “Philosophical Hermeneutics in
the Age of Pixels: Hans-Georg Gadamer, Peter Tiersma, and Dasein in the Age of
the Internet” by Frank S. Ravitch looks at the relationship between technology
and tradition in the understanding of law. Edward Finegan in Chapter 8 “The
Language of Lawyers and the Language of Plumbers” takes up the conversation
with Tiersma by showing examples of situations where the distance of legal
language from ordinary English, despite their apparent similarity, can have
serious consequences. In the final chapter of the section “’Words, Words,
Words’-But What’s in a Legal Text” Dieter Stein suggests that “the law is not
in the words, and the words are really indexical of the existence of the law”
(p. 54). 

PART II The Language of Contracts and Wills

Chapter 10 “Text, Tape and Pixels in Making of Wills” by Peter Tiersma
discusses the technological advancements and the limited impact they have had
on making wills. Tiersma proposed a change in approach, recognising formal and
informal wills, with varying degrees of textuality allowed.  In Chapter 11
“Reassessing Unilateral Contracts”, an excerpt from an article originally
published in 1992, Peter Tiersma shows how unilateral offers are in fact
promises. Chapter 12 “Philosophy of Language, Unilateral Contracts and Law” by
Brian H. Bix provides a commentary on Chapter 11, arguing that the insights
from the philosophy of language often do not challenge concepts from the legal
doctrine, but on occasion it happens, as Peter Tiersma demonstrated. Chapter
13 “How to Do Legal Things with Words” by Sidney W. DeLong is a reaction to
Peter Tiersma’s writings on the application of speech act theory to legal
doctrine? In DeLong’s words Tiersma’s suggestion was a bold move which allowed
scholars to “step over the boundaries of speech act theory and natural
language into the jurisdiction of ethics and law” (p. 81). Peter Goodrich
illustrates in Chapter 14 “Tiersma Contra Mundum: in Defence of Promises” some
ways in which the reasoning suggested by Peter Tiersma would have helped to
resolve some legal cases (Browning v. Johnson 1967). Chapter 15 by Jeffrey M.
Lipshaw “Formalism, Speech Acts, and the Realities of Contract Formation”
takes Tiersma’s suggestion to recognise performative utterances in the
electronic format even further to dismiss the legal concept of “mutual
intention of the parties” (p. 90). 

PART III Speech and Action

The Meaning of Silence in Law

Chapter 16 “The Language of Silence: Implication and the Role of Conversation”
is an excerpt from Peter Tiersma’s article published in 1995 in Rutgers Law
Review, where Tiersma argues for a communicative approach to silence. Chapter
17 “Symbolic Destruction” provides an excerpt from Tiersma (1993a). The first
commentary in this sub-section, Chapter 18 by Elizabeth Mertz “Law’s
Metalinguistics: Silence, Speech, and Action,” demonstrates how Tiersma’s
contribution exemplifies ways in which law deals with the tacit linguistic
ideologies. In Chapter 19 “The Sounds of Silence” Malcolm Coulthard shows how
Tiersma’s interest in silence can be realised in various legal settings: in
police cautions, using warnings, or perhaps committing plagiarism through
silencing original author’s words and ideas quoted. Chapter 20 “Speech or
Silence: Within and Beyond Language and Law” by Meizhen Liao shows that
Tiersma’s ideas also have implications for the Chinese legal system. 

Consenting

Chapter 21 “The Language of Consent in Rape Law” is an excerpt from Tiersma’s
(2007a) chapter in Janet Cotterill’s collection on language of sexual crime.
Peter Tiersma suggests consent is a mental state, and therefore has to be
inferred. Furthermore, consent can either be voluntary or involuntary, and in
the latter case questions can be raised as to whether it really is consent. In
this light, he suggests redefining rape law to shift the focus from the
victim’s state of mind to the ‘means rea’ of the accused. In Chapter 22
“‘Inferring’ Consent in the Context of Rape and Sexual Assault” Susan Ehrlich
demonstrates the power of Tiersma’s work on consent by presenting a case where
the defendant was acquitted in lower courts based on implied consent before
the acquittal was overturned by the Supreme Court of Canada (R. v. Ewanchuk
1995). Ehrlich demonstrates how the lower courts saw the complainant as silent
and passive, which corresponds with Tiersma’s (1995) scholarship on silence.
In Chapter 23 “Felicitous Consent” Tim Grant and Kerrie Spaul respond to
Tiersma’s stance on consent by agreeing that consent is a mental state and
must be communicated: “For Tiersma the communication of consent is a matter of
evidence of the mental state, whereas for us the communication is a necessary
constitutive element of consenting.” They lay their position out (p. 145) and
juxtapose Tiersma’s ideas of an understanding of consent as a speech act with
Cowart (2004) who rejects the idea of involuntary consent. They go on to argue
that consent “is socially required only when there is some likelihood of it
not being given” (p. 147). Grant and Spaul also look at the UK Sexual Offences
Act 2003 and briefly discuss it in the context of Tiersma’s analysis. Gregory
Mateosian in Chapter 24 “Reflections on Peter Tiersma’s ‘The Langauge and
Consent in Rapee Law’” extends the considerations on consent to witness
examination in the courtroom, demonstrating how hegemonic ideologies are made
manifest and reproduced. The patriarchal system reproduced by aggressive
adversarial questioning means that the issue of consent will always be
important. In Chapter 25 “Speaking of Consent” Gail Stygall suggests
re-conceptualizing the concept of rape in a different legal context, namely
the enforcement of contracts of adhesion, that is pre-printed forms which have
already been drafted and need to be filled and signed. She concludes that
“consent in contracts of adhesion is elusive” (p. 155). 

Defaming

Chapter 26 “Defamatory Language and the Act of Accusing,” opening the
sub-section entitled “Defaming,” is an excerpt from Tiersma’s article on
language of defamation (Tiersma 1987). It demonstrates how defamatory language
necessarily involves the speech act of accusing, and sets it aside from
similar speech acts such as blaming and accusing by demonstrating the
importance of the propositional content.  In what follows John Conley comments
on Tiersma’s engagement with linguistic theory to enhance our understanding of
a legal phenomenon. In chapter 27 “Defamation as Speech Act: A Theory that
Works” he finds it difficult to fault Tiersma’s model and adds that it is very
rare for the law to use theories outside its sedimented methods. Roger Shuy in
Chapter 28 “Applying Tiersma’s Defamation Theory to Defamation Cases” shares
examples of legal cases where he was able to put Tiersma’s ideas into practice
as an expert witness. The final piece of commentary on the subsection, Chapter
29 “Scarlet Letter or Badge of Honour? Semantic Interpretation in Changing
Contexts of Culture” by Krzysztof Kredens, offers a slightly different
perspective on Tiersma’s paper. Kredens demonstrates how constantly changing
societal norms add another layer in analysis of defamatory language.

PART IV interpreting laws

Chapter 30 “Dynamic Structures” in an excerpt from Tiersma (2010) dealing with
the technological changes, which the legislative process does not necessarily
catch up with as it insists on keeping official physical copies of laws as
originals. Tiersma suggests ways in which the law making practices could
become more dynamic, such as for example by the judges being able to make
comments or even modify bills online (p. 184). Chapter 31 “The Textualization
of Precedent” is another excerpt from Tiersma’s work (2007b) suggesting that
traditionally unwritten common law, as opposed to statute law, is becoming
increasingly written down – a process which Tiersma calls “textualization” (p.
192). He shows examples of how this practice takes place pointing out
differences in quoting previous opinions by American and British judges. In
the first piece of commentary in this section Lawrence Solan concludes Chapter
32 “Talk about Text as Text” by saying that “judges act as much as lawgivers
as the law interpreters they profess to be” (p. 201).  In Chapter 33 Jeffrey
Kaplan tries to evaluate Tiersma’s suggestion to include both the focus on the
text of the law as well as the intentions behind it. Kaplan argues for a clear
demarcation between interpretation and construction, and by looking at a
specific case (D.C. v. Heller 1993) he shows how Tiersma’s idea for the courts
to be both textualist and intentionalist could be operationalized. Chapter 34
“Between Paper and Pixels – How the Form of Modern Laws Changed their
Function” by Dru Stevenson shows how codification, among other factors such as
changes to information management systems, has led to proliferation of
statutes.

PART V Language and criminal justice

Crimes of language

Chapter 35 “The Language of Perjury: Speaking Falsely by Saying Nothing” is an
excerpt from Tiersma (1990). The chapter deals with one of the areas
extensively researched by Tiersma – silence, and shows how not saying anything
can actually communicate a lot. Tiersma suggests that the legislation should
reflect the fact rather than requiring witnesses to state something which they
do not believe to be true. Chapter 36 “Threats” by Solan and Tiersma is an
excerpt from their 2005 book Speaking of Crime: The Language of Criminal
Justice.  In it the authors define what threats are, trying to differentiate
them from other speech acts, such as warnings or promises. In Chapter 37 “How
we Play Games with Words in the Law” Janet Ainsworth comments on Tiersma’s
work on perjury asking why the crime is rarely charged despite anecdotal
evidence to the opposite effect. She suggests that the role of attorney as a
co-producer of testimony needs to be taken into consideration. Chapter 38
“Toward a Communicative Approach to Law- and Rule-Making” by Philip Gaines
also offers a commentary on the subject of perjury. Gaines argues that the law
and the American Bar Association Model Rules of Professional Conduct aim to
prevent juries from being misled, but in order to be effective the definitions
offered by them need to be viewed in the light of communicative approach,
suggested by Tiersma, rather than literal meaning. Susan Berk-Seligson authors
Chapter 39 “Threats: A Paralinguistic Approach to the Analysis of Speech
Crime,” in which she reports narratives of people who felt threatened.
Berk-Seligson asks whether narrating experiences rather than quoting actual
threat would be a successful strategy in court.

Criminal justice and everyday speech

The sub-sections opens with Chapter 40 “The Judge as Linguist,” which is an
excerpt from Tiersma (1993) showing how judges often undertake linguistic
analyses in their rulings. In Chapter 41 “Applied (Forensic) Linguistics in
Autochtonic and Allochtonic Use” Hannes Knifka uses Tiersma’s writing as a
springboard to think about the relationship between linguistics and law and
suggests that a distinction between autochtonic and allochtonic terms, that is
terms originating within and outside of a discipline in question, could
provide an important theoretical perspective. Chapter 42 “The Sound of
Silence: Miranda Waivers, Selective Literalism, and Social Context” by Richard
A. Leo offers an example of a case where the courts failed to see the
communicative intent of the invocation of Miranda Rights. In Chapter 43 “Words
Alone” Laurie Levenson applies Tiersma’s work on perjury to Clinton’s
impeachment trial. In the section’s final chapter “Sizzling Irons: Speaking of
Criminal Justice” Frances Rock shows examples research interviews with
suspects showing how Tiersma’s engagement with pragmatics can be applied in
the legal setting of policing.

PART VI: Jury instructions

The section opens with two excerpts from Peter Tiersma, showing the history of
jury instructions (Tiersma 2001) and, in Chapter 46 “Capital Instructions:
Comprehension as a Matter of Life or Death” an excerpt from Tiersma (1999),
demonstrating why it is of paramount importance that juries understand what
they are supposed to do. Both chapters stress the need for reform of pattern
jury instructions read out irrespective of the nature of the exact case.
Chapter 47 “Navigating the Rocky Road” by Bethany Dumas shows an example of
how narrativizing some of the legal terms might be helpful for the lay juries
to understand legal terms. Chris Heffer in Chapter 48 “Authority and
Accommodation: Judicial Responses to Jurors’ Questions” demonstrates how
jurors’ attempts to engage with language of the law are met with legal
professionals’ ignorance of the realities of laypeople’s capabilities to
understand to legal terminology. Heffer argues not only for greater
comprehensibility of jury instructions but more importantly for understanding
the jurors’ perspective. The final chapter of the volume, “Jury Instructions
Written for Jurors: A Perennial Challenge” by Nancy Marder, comments not only
on the language of jury instructions but also on the importance of the
delivery, which is especially important in the digital age.

EVALUATION

The editors have managed not only to bring some of the most important of
Tiersma’s readings into one place, a task which was aided by Peter Tiersma
himself when he was still around (p. xvi), but also have achieved, true to the
volume’s subtitle, to generate a discussion around the questions raised by
Tiersma’s scholarship. This is partly thanks to the good organization of the
volume. It is clearly structured and having the excerpts at the beginning of
each part with the essays serving as commentaries following them works really
well. The variety of contributors, coming from different disciplines as well
as geographical areas, is one of the main strengths of the volume, as it
allows for multiple disciplines to be represented. However, this strength can
at times turn into a disadvantage. For a linguist some of the chapters with a
more legal focus are not very accessible (and I am not sure whether the
opposite would be true), dwelling on legal intricacies and quoting some of the
regulations with which an average reader might not be familiar. In most
places, however, legal cases are explained in enough detail so overall the
reader can follow the main argument. After all, people like Peter Tiersma who
feel equally at ease in both law and linguistics and can communicate this to
wide audiences of people are rare. 

I am convinced that this latest addition to the “Oxford Studies in Language
and Law” series will find its place in many departmental libraries, both in
law and linguistics. A lot of research still needs to be undertaken in the
areas taken up in the book, but the volume provides a good summary of the
state of the discipline(s) by revisiting some of Peter Tiersma’s most
influential ideas and in many places suggesting the ways in which they can be
taken on and carried forward.

REFERENCES

Cowart, M. 2005. Understanding Acts of Consent: Using Speech Act Theory to
Help Resolve Moral Dilemmas and Legal Disputes, Law and Philosophy 23:
495-525.

Tiersma, P.M. 1987. The Language of Defamation, Texas Law Review 66: 303-350.

Tiersma, P.M. 1990. The Language of Perjury: “Literal Truth,” Ambiguity and
the False Statement Requirement, Southern California Law Review 63: 373-431.

Tiersma, P.M. 1992. Reassessing Unilateral Contracts, U.C. Davis Law Review
27: 269-78.

Tiersma, P.M. 1993a. Nonverbal Communication and the Freedom of “Speech,”
Wisconsin Law Review 1993: 5125-1569.

Tiersma, P.M. 1993b. The Judge as Linguist, Loyola of Los Angeles Law Review
27: 269-284.

Tiersma, P.M. 1995. The Language of Silence, Rutgers Law Review 48: 1-99.

Tiersma, P.M. 1999. Legal Language. Chicago: University of Chicago Press.

Tiersma, P.M. 2006. Some Myths about Legal Language, Journal of Law, Cultures
and Humanities 2: 9-50.

Tiersma, P.M. 2007. The Language of Consent in Rape Law. In Cotterill, J.
(ed.) The Language of Sexual Crime. Houndmills: Palgrave, 83-103.

Tiersma, P.M. 2007b. The Textualization of Precedent, Notre Dame Law Review
82: 1187-1278.

Tiersma, P.M. 2010. Parchment, Paper, Pixels: Law and the Technologies of
Communication. Chicago: University of Chicago Press.

Tiersma, P.M. 2012. A History of the Languages of Law. In Tiersma, P. and L.M.
Solan (eds) The Oxford Handbook of Language and Law. Oxford: Oxford University
Press, 13-26.

Tiersma, P.M. and Solan, L.M. (2005) Speaking of Crime: The Language of
Criminal Justice. Chicago: University of Chicago Press.

CASES CITED

Browning v. Arthur Johnson, 422 P.2d 314 (1967).

D.C. v. Heller, 508 U.S. 223 (1993).

R. v. Ewanchuk (November 7, 1995) Alberta Court of Queen’s Bench, Edmonton,
Alberta.


ABOUT THE REVIEWER

I am a doctoral student at Cardiff University, where I completed a MA in
Forensic Linguistics. My research project, which is part of a large AHRC grant
“Translation and Translanguaging: Investigating Linguistic and Cultural
Transformations in Superdiverse Wards in Four UK Cities,” employs linguistic
ethnography to investigate the ways in which Police Community Support Officers
communicate in their work with members of the public.





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