30.279, Review: Discourse Analysis; Forensic Linguistics; Pragmatics: Kurzon, Kryk-Kastovsky (2018)

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Subject: 30.279, Review: Discourse Analysis; Forensic Linguistics; Pragmatics:  Kurzon, Kryk-Kastovsky (2018)

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Date: Thu, 17 Jan 2019 15:51:19
From: Dakota Wing [wingdakota at gmail.com]
Subject: Legal Pragmatics

 
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Book announced at http://linguistlist.org/issues/29/29-2108.html

EDITOR: Dennis  Kurzon
EDITOR: Barbara  Kryk-Kastovsky
TITLE: Legal Pragmatics
SERIES TITLE: Pragmatics & Beyond New Series 288
PUBLISHER: John Benjamins
YEAR: 2018

REVIEWER: Dakota Wing, York University

SUMMARY

‘LEGAL PRAGMATICS’ is a new addition to the John Benjamins Publishing
Company’s Pragmatics & Beyond New Series. Editors Dennis Kurzon and Barbara
Kryk-Kastovsky aptly note that “[l]anguage and law [are] two crucial domains
of human social activity [that] have always been interconnected” (p.1). This
is the focus of the current volume, which brings together a group of
international scholars with contributions that span geographical borders,
languages, and time periods to explore how “principles of language use can be
beneficial to clarifying legal issues” (cover abstract). This broad scope and
interdisciplinary title invite a wide-array of global readers, including
linguists, legal scholars, historians, sociologists, and law enforcement
officers.

In addition to the Introduction, 12 chapters are organized thematically into
four parts: ‘Historical pragmatics’ (Chapters 1-4), ‘Pragmatics of legal
writing and documents’ (Chapters 5 and 6), ‘Discourse in the courtroom and in
police investigation’ (Chapters 7-10) and ‘Legal discourse and
multilingualism’ (Chapters 11 and 12). Together, these chapters introduce
major topics in legal pragmatics. 

The Introduction, by editors Kurzon and Kryk-Kastovsky, outlines the
relationship between language and the law, highlighting the overlap found in
the seminal work of Austin’s (1962) Harvard lectures and Searle’s (1975)
emphasis of speech acts in legal language. The authors demonstrate how the
development of the field of pragmatics is often understood through legal
language and how legal language is often understood through pragmatics. Their
discussion covers the role of power, control, and politeness in written and
spoken legal discourse, including courtroom discourse, noting that this is an
“interface where language and law meet to fulfill a social function” (p.3).
Kurzon and Kryk-Kastovsky also discuss historical courtroom discourse and
address common issues and difficulties in the field of historical pragmatics.
The authors give attention to the speech act of insults, illustrating
synchronic and diachronic approaches to studying verbal abuse, the role of
context, terminological issues, and differences between linguistic approaches
to legal matters and actual legal standpoints. Kurzon and Kryk-Kastovsky make
an insightful parallel between the legal standard of ‘reasonable persons’ and
the Gricean Cooperative Principle. 

Part I, dedicated to ‘Historical pragmatics’, begins with Kathleen L. Doty’s
paper ‘Pleading for life: Narrative patterns within legal petitions (Salem,
1692)’ (Chapter 1). Doty examines narrative aspects of 21 petitions (written
requests to save a life) by either the accused or on behalf of the accused
from the 1692 Salem witchcraft trials. Focusing on “the documents’ narrative
import and their contextual functionality as pleas” (p. 25), the petitions are
shown to highlight power dynamics and utilize religion, family, and community
to reframe the social identity of the accused from a criminal witch or wizard
to a “[character] within a larger social narrative” (p. 38). Doty makes a
comparison to present day American parole petitions.

Chapter 2, titled ‘’How came you not to cry out?’ Pragmatic effects of
negative questioning in child rape trials in the Old Bailey Proceedings
1730-1798’ by Alison Johnson looks at, as the title suggests, how negative
questions are pragmatically used in child rape trials from the Old Bailey
Proceedings (England). Using a corpus of question-answer excerpts from 36
child rape trials, a comparative corpus of adult rape trails, and an
appropriate historical reference corpus, keywords and word clusters illustrate
a discursive strategy of the barrister to normalize rape, make assumptions
based on ‘rape myths’, and frame the victim in terms of what they did not do
as opposed to what was done to them. Johnson notes that “the prominent,
recurring patterns of ‘why’ and ‘how came’ questions with negative polarity
[…] dominates the discourse and the child, bringing with it negative and
prejudicial ideologies, which work adversely against the complainant in these
prosecutions” (p. 53). 

In Chapter 3, Barbara Kryk-Kastovsky looks at ‘Implicatures in Early Modern
English courtroom records’. The analysis of courtroom discourse from three
17th century criminal trials in England reveals patterns of use of ‘literal’
and ‘nonliteral’ language. Kryk-Kastovsky identifies and discusses a total of
36 implicatures. In two of the cases, ‘powerful’ participants (judges and
lawyers) make use of non-literal language, relying on highly-contextual
information to derive meanings whereas ‘powerless’ participants (defendants
and witnesses) are more literal. In the third case, a King is on trial which
presents a unique power dynamic that is reflected in the use of implicatures
by all participants. This finding highlights the relationship between language
use and social power (or at least perceptions of) in legal settings. 

Chapter 4, ‘Literal interpretation and political expediency: The case of
Thomas More’ by Dennis Kurzon investigates the linguistic circumstances
surrounding the 1535 high treason trial of Sir Thomas More in England. Kurzon
discusses the Contextual information at the time of the passing of four
consecutive statutes in 1534 by King Henry VIII. It is shown that when the
literal legal text (at the semantic level) is considered in addition to legal
presuppositions and real-world implications (at the pragmatic level), the
‘speaker meaning’ interpretation is what “determined the ultimate meaning of
the statutes and their application” (p. 89). The refusal by More to take a
required oath is explained by his interpreting of the statutes as literal (at
the semantic level), which ultimately leads to a guilty charge and his
execution. The author discusses a subsequent case, the ‘Heydon Case’ of 1584,
which reached a decision on legal interpretation based on “the reasons why the
law was passed” (p. 90) to avoid absurdity, now known as the ‘Golden Rule’,
suggesting that the same concepts were applied at More’s trial. 

Part II, consisting of two chapters, discusses the ‘Pragmatics of legal
writing and documents’. Chapter 5, ‘Making legal language clear to laypersons’
by Sol Azuelos-Atias addresses the difficulties in making the legal
sub-language (‘legalese’) understandable to laypersons. Azuelos-Atias posits
that, in addition to the technical vocabulary and the syntactic complexity,
the “pragmatic factors of legal texts—intertextual and interdiscursive
links—cause difficulties to laypersons’ understandings of these texts” (p.
106). Using a thought experiment based on an ‘imaginary qualified layperson’
interpreting a section of the Israeli penal law, it is shown that a legal text
can be understood (that is, can come to the “correct answer” (p. 110)) by a
legal layperson by rephrasing the “technical vocabulary, syntactic complexity,
and implicit intertextuality” (p. 107). 

Similarly investigating legal interpretation in legal writing and documents,
Jacqueline Visconti discusses ‘Interpreting ‘or’ in legal texts’ in Chapter 6.
Through a number of court decisions in various languages from the European
Court of Justice, and UK and US courts, the author shows how judges apply
extra-linguistic information (beyond the semantic meanings of lexical units)
when interpreting ambiguous language, specifically the disjunctive conjunction
‘or’. Visconti notes that other prepositions and connectives are prone to
similar judicial interpretations. 

Part III, ‘Discourse in the courtroom and in police investigation’ starts with
Chapter 7, ‘The nature of power and control in the interrogative patterns of
selected Nigerian courtroom discourse’ by Oluwasola A. Aina, Anthony E. Anowu,
and Tunde Opeibi. This study looks at the ways in which interrogatives, in
conjunction with social status and context, are used in a Nigerian
cross-examination of a defendant and two cross-examinations of witnesses in
Nigerian election tribunals. The pragmatic and Critical Discourse Analysis
reveals how information-seeking interrogatives (wh- questions) function to
constrain responses by “exploiting the underlying presuppositions” (p. 146)
and challenging inconsistencies. The authors find that the lawyers “frame the
wh- questions in such as way that the witness has no choice but to provide
just the specific answer demanded by counsel” (p. 147). They also note that
confirmation-seeking questions (yes/no questions, declarative questions, and,
although not in their data, tag questions) “restrict the witness’ response to
a minimal ‘yes’ or ‘no’” (p. 148) and that conducive questioning—relying on
old and new assumptions, sentence form, topic continuity, and repetition—can
be used “as an instrument of control” (p. 151). As such, the questioners
(counsel) express power and control by discursively restricting the questioned
witnesses and defendant’s narrative of events through interrogative choices. 

Chapter 8, dealing with law enforcement-suspect interview discourse is titled
‘The language of Egyptian interrogations: A study of suspects’ resistance to
implications and presuppositions in prosecution questions’ by Neveen Al Saeed.
This paper uses a discourse-pragmatic analysis to examine the response
strategies (specifically, ‘I do not know’ and ‘I do not know’ accompanied with
an explanation) employed by questioned suspects in 18 (inquisitorial) Egyptian
cases to resist the questioning prosecutors’ power, control, and preferred
narrative. The author examines various question types that elicit “I do not
know” responses and discusses the pragmatic implications of the resistant
responses. Al Saeed demonstrates that there is a constant power struggle
represented by the types of questions asked by the prosecutors and responses
provided by the interrogated. 

In Chapter 9, ‘Achieving influence through negotiation: An argument for
developing pragmatic awareness’ by Dawn Archer, Rebecca Smithson, and Ian
Kennedy, the last four minutes of a crisis negotiation in the United States
are examined through the lens of two established negotiation models, the SAFE
model (Hammer, 2007) and the behavioural staircase (Vecchi et al., 2005). The
analysis demonstrates instances where the negotiator did not adhere to these
models (failing to identify frames or reframe, failing to appreciate other
points of view, and skipping or rushing steps). The authors posit that a
greater sense of pragmatic awareness (including face and facework, politeness,
speech acts, interruptions, and silence) and an understanding of the ‘how,
‘what’, and ‘why’ of influence will benefit crisis negotiators by viewing
negotiations as collaborative interactions and “develop[ing] an appreciation
for meaning in context” (p. 193). 

Another paper dealing with law enforcement-suspect interview discourse in an
inquisitorial system is Ikuko Nakane’s paper, ‘’I really don’t know because
I’m stupid’: Unpacking suggestibility in investigative interviews’ (Chapter
10) which analyzes the interactive frames and knowledge schemas in two
Japanese investigative interviews of a suspect assessed with ‘borderline
intellectual functioning’. Nakane walks through the conflicting perspectives
and identifies the different schemas that produced a shifting of frames which
were enhanced by the unbalanced power dynamics and supported by aspects of
intertextuality and the prosecutor ignoring indications of vulnerability (an
intellectual disability). The analysis illustrates how “coercion did not occur
in a single turn or sequence but was a discursive process” (p. 223) and
ultimately led to a false confession. 

The two chapters in Part IV discuss ‘Legal discourse and multilingualism’.
Chapter 11 by Tarja Salmi-Tolonen is titled ‘On the balance between invariance
and context-dependence: Legal concepts and their environments’. Through the
multijural and multilingual contexts of the European Union, Salmi-Tolonen
discusses the paradox of legal language being decontextualized and
simultaneously influenced by context. The author provides examples that
demonstrate issues of ordinary meanings, how “reading different language
versions [of legal texts] can lead to different interpretations” (p. 242), and
that “societal evolution and change […] evolve at very different paces in
different member countries” (p. 243). The examples show that, for law
appliers, advocates, and the general public, recontextualization and
appropriate types of knowledge (declarative, situational, functional, and
linguistic) are needed to achieve “a better understanding and interpretation
of both variance and invariance” (p.253).  

The final chapter, Chapter 12, ‘Contextuality of interpretation in
non-monolingual jurisdictions: The Canadian experience’ is by Diana Yankovo.
This paper highlights the bilingual and bijural legal context in Canada and
discusses the process of harmonizing the English common law and the French
civil law. Yankovo notes that pragmatic aspects of interpretation were
prioritized in the three techniques used to draft legislation and discusses
the problems faced by the Canadian Department of Justice (including
terminology and conceptual disparities). The Canadian approach is positioned
as a model for other multilingual and multijural contexts and a “universally
applicable” (p. 271) reformulation of laws in the European Union is suggested.

EVALUATION

‘LEGAL PRAGMATICS’ is a well-written book, offering a range of pragmatic
applications to legal contexts around the world. The broad scope permits
contributions regarding both spoken and written language from various stages
of legal systems and from a variety of time periods. One of the book’s major
achievements is the editors’ ability to bring together a wide range of topics
that cohesively relate to an overarching theme of power relations in the legal
domain.  

The international group of contributors collectively address legal issues in
the past and present, allowing this book to serve as a stepping stone for the
future, for both research and practical applications. The discourse-pragmatic
methodological approaches illustrate the applicability of linguistics to
current issues in legal contexts around the world. Specifically, the
recommendations posed in various chapters, such as Chapters 5, 9, and 12,
demonstrate the role linguists can play in furthering legal processes. The
editors’ choice to include historical applications of pragmatics to legal
topics that are also addressed in subsequent ‘present-day’ chapters highlights
the many unresolved issues that continue to exist and offers a beneficial
perspective of using principles of language use to clarify legal issues, which
is, appropriately, the goal of the book.

The valuable global aspect of the book also necessitates an understanding of
various legal systems used around the world. Thus, the Introduction could have
prepared the reader with an overview of the prevalent systems, such as the
common law and civil law systems, and adversarial and inquisitorial systems. 
Additionally, the nature of this book—dealing with one specific linguistic
subfield, pragmatics—conveniently allows for a reader with limited knowledge
of linguistics to follow the applications of pragmatics to the various legal
contexts. As such, this book could have benefited from a more comprehensive
overview of pragmatics in the Introduction, and subsequent chapters could have
omitted oft-repeated introductory concepts. 

The Introduction contains a useful discussion on the problems associated with
working with historical data; however, the authors posit that “the pragmatic
features traceable in the old language materials make it possible to assume
that the language recorded in the trial proceedings is a fairly adequate
approximation for the spoken idiom of that language'' (p.7). Although they
present studies that support this and embed this claim within a wider
discussion, readers should be cautioned that courtroom discourse is often a
unique register. This is exemplified by the authors noting that other scholars
have “argue[d] that legal communication may have features not found in
everyday communication'' (p.5) as well as the chapters in this book discussing
courtroom discourse and the ‘legal sub-language’ (discussed in Chapter 5) more
generally. Furthermore, readers should be reminded of the issues with
historical data, as Doty notes in Chapter 1 that, ''these written documents
are far from verbatim records of individuals' words since the records were
mediated by the scribes who wrote them down'' (p.22). Nevertheless, it is
refreshing that the authors discuss these issues and the historical
contributions in this book provide valuable insights and links to current
legal matters. 

While Chapter 3 has merit in many ways, the proposed explanation of the
findings presents a theoretical problem. The author demonstrates, in courtroom
discourse from the 17th century, that the divide between ‘literal’ and
‘non-literal’ language use correlates to the distinction between the powerless
and the powerful, respectively. However, it is posited that “the interrogated
had to resort to literal language in order to observe one of the rules of the
Miranda warning (‘Anything you say can be used against you’)” (p. 65) and that
“in court one is supposed to […] keep in mind the Miranda warnings: (1) You
have the right to remain silent, since (2) Anything you say can be used
against you” (p. 66). The problem with this proposed explanation is that
Miranda warnings are an American procedural feature of custodial interviews
that came into being as a result of a 1966 Supreme Court ruling (the warnings
discussed here concern the 5th Amendment which was introduced in 1791). Thus,
Miranda warnings were (are) not applicable to discourse in the courtroom,
outside of the United States, or in the 17th century. The author may be
referring to similar rights against self-incrimination in England, but this is
not made clear. 

The general organization of the parts of the book is coherent and logical.
However, the four articles in Part I have no apparent order. Ordering them
chronologically based on the data analyzed (reordered as Chapter 4 (data from
1534/1535), Chapter 3 (data from 1649/1685), Chapter 1 (data from 1692),
Chapter 2 (data from 1730-1798) would progressively bring the reader closer to
the present-day content in Part II. There are also thematic relationships
between chapters that appear in different parts of the book, so a reader
should be aware that if they are interested in a specific topic an alternative
reading order would offer direct comparisons. For example, Chapters 2, 3, and
7 all deal with courtroom discourse (historical and current), Chapters 8 and
10 deal with law enforcement-civilian police interviews, and Chapters 4, 5,
and 6 (although in order, appear in different sections) deal with legal
interpretation, so grouping these chapters would be beneficial for readers
with interests in specific topics. 

Finally, there are several editing issues that readers should be aware of,
such as missing and misspelled citations, a missing ‘notes’ section title, and
variation in proper noun spellings within a chapter. 

As a whole, ‘LEGAL PRAGMATICS’ provides an insightful overview of the
applications of pragmatics to various legal contexts. Each chapter approaches
a relevant issue and contributes not only to the wider field of language and
law (or forensic linguistics), but also advances the practical applications of
using principles of linguistics to reveal, investigate, and suggest solutions
to pressing issues. The global aspect of this book truly makes it a valuable
resource to linguists, lawyers, legal scholars, historians, sociologists, and
law enforcement personnel around the world. The editors have strategically
connected topics and issues within the legal domain through international
contributions that examine various languages, judicial systems, and time
periods, which collectively showcase the vast role that language plays in (law
and) society. 

REFERENCES

Austin, J. L. 1962. How to do things with words. Oxford: Clarendon Press.

Hammer, M. R. (2007). Saving lives: The SAFE model for resolving hostage and
crisis incidents. Oxford:Westport, Conn.: Praeger Security International

Searle, John. 1975. Indirect speech acts. In Cole and Morgan, 59-82. 

Vecchi, G. M., Van Hasselt, V. B., & Romano, S. J. 2005. Crisis (hostage)
negotiation: Current strategies and issues in high-risk conflict resolution.
Aggression and Violent Behavior, 10(5), 533-551.


ABOUT THE REVIEWER

Dakota Wing is a PhD student in linguistics and applied linguistics at York
University, Toronto, Canada. He is a teaching assistant and a language analyst
at a forensic linguistics consulting firm. He holds an MA in Forensic
Linguistics and his research focuses on interactional sociolinguistics,
language and law, and applying discourse analysis methodologies to forensic
data.





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