27.3300, Review: Discourse; Socioling: Lynch, Berard, Dupret (2015)

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Subject: 27.3300, Review: Discourse; Socioling: Lynch, Berard, Dupret (2015)

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Date: Wed, 17 Aug 2016 11:08:14
From: Lelija Socanac [lelijasocanac at gmail.com]
Subject: Law at Work

 
Discuss this message:
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Book announced at http://linguistlist.org/issues/26/26-4798.html

EDITOR: Baudouin  Dupret
EDITOR: Michael  Lynch
EDITOR: Tim  Berard
TITLE: Law at Work
SUBTITLE: Studies in Legal Ethnomethods
PUBLISHER: Oxford University Press
YEAR: 2015

REVIEWER: Lelija Socanac, University of Zagreb

Reviews Editor: Helen Aristar-Dry

SUMMARY

''Law at Work”, edited by Baudouin Dupret, Michael Lynch, and Tim Berard,
offers a distinctive ethnomethodological approach to legal activities and
insights into the study of law at work. Ethnomethodological and conversation
analytic (CA) studies examine law-in-action, which means that they describe
interactionally organized performances of legal activities. They show in
detail how the actions of lawyers, witnesses, judges, and juries draw upon
ubiquitous interactional competencies while performing situated legal work
(Garfinkel 1967). The focus on how law is performed and how it works in
practice can lead to insights on the centrality of language use in law. 

The volume consists of an Introduction, eleven chapters divided into three
sections, and an Index. In the Introduction, the editors explain the
methodologies adopted in the book, innovative approaches with respect to the
traditional research in the area of language and law, and the overall
organisation of the volume. According to the editors, four major themes can
explain the specific contributions of ethnomethodology to the study of law: 1)
the relationship between law in action and ''law on the books”; 2) the
''missing what'' of law-and-society research and statistical legal studies; 3)
the local orders of practice that are missed by ''hyper-explanations'' and 4)
the alternative re-orientation offered by ethnomethodological research on the
legal work. They elaborate the four themes mentioned above as follows:

1) Law as a social phenomenon cannot be reduced to legal codes (''law on the
books”), although statutes, case law, and rules of evidence are integral to
the practice of law. A more adequate understanding can be gained through the
close description of both professionals' and laypersons' orientations to legal
categories as they emerge from actual encounters in legal forums, in the
context of practical casework. 

2) In most socio-legal studies, scholars have addressed the nature of law but
ignored the phenomenon of legal practice. As a result, little or no attempt
has been made to investigate the specific competences through which lawyers
produce and coordinate legal actions in particular circumstances. This
disinterest in practical actions results in the ''missing what” in the study
of legal work (Garfinkel 2002, 99n). Socio-legal studies should describe and
analyse how legal categories are used, rather than treating them as
self-evident prescriptions for action.

3) Hyper-explanations use abstract concepts that are (arguably) relevant to
all social institutions and actions, such as the basic functions of
bureaucracy, stages of development in theories of modernity, and theories of
power and domination. Legal institutions and authority often have a central
place in such explanations, but the specific practices that constitute legal
activities tend to be subordinated to overarching concepts defined by a theory
of the constitution of society.  On the other hand, ethnomethodologists and
conversation analysts ''insist that we must first understand what is happening
as a local phenomenon'' before assuming that a ''variable or concept such as
power is relevant” (Dingwall 2000, 906). Legal work involves practical and
daily activity embedded in legal environments which both constrain what can be
achieved in particular situations and provide resources for accomplishing such
work. For ethnomethodology and CA, legal contexts provide conditions for
action, while at the same time being constituted in and through such actions. 

4) The ethnographic studies often use methods of participant observation in
which the analyst develops a practical (and sometimes professional) competence
with legal activities as a condition for analysing legal work, while the CA
studies examine recorded and transcribed exchanges and focus on the way that
participants rely upon ''ordinary'' practices of language in interaction.

The eleven chapters are organized into four sections: 1) Practical Action,
Situated Interaction, and Salience of Law; 2) Practical Pedagogies in the
Performance of Legal Activities; 3) Speech, Text, and Technology in Testimony;
and 4) Deviance, Membership Categories, and Legalities. Each section begins
with a brief summary of the theme and of the chapters in the section.

The section on ''Practical Action, Situated Interaction, and Salience of Law''
examines the salience of law to actions in the courtroom. The three chapters
in this section present case materials and explore how participants in legal
work orient to legal relevancies while contending with the contingencies of
the particular case.

In Chapter One: ''The Practical Grammar of Law and its Relation to Time'', 
Baudouin Dupret and Jean-Noël Ferrié  address members’ orientations to the
temporal dimension of the law,  and the role that time and history can play in
such an approach. The practical grammar of law is reflected in its
intertextual organization. The sequential nature of law in action results in
people orienting to past and future stages of the process, relying on the
former and anticipating the latter. When legislating or adjudicating, members
weave the sequential thread of the law through the associations they make
among sites, actants, texts and authorities in dialogue with one another.
After introducing their approach, the authors examine a series of laws,
legislative amendments, and judicial rulings in Egypt concerning a woman's
right to divorce her husband. The key point here has to do with the status of
Shariah as the principal basis of family law. The authors also show how the
practical actions are produced in relation to the historical context of
Egyptian legislation and previous legal settlements.

Chapter Two: ''Aspiring Magistrates: Entry Exams and General Traineeship at
the Court of Lecce'' is based on extended ethnographical research conducted by
the late Luisa Zappulli in an Italian court. Karen Hough completed the chapter
by working with notes and a rough draft. The chapter focuses on trainees who
had recently passed their qualifying exams and were in the course of training
as magistrates under the supervision of an experienced judge. The authors
frame their analysis with a contrast between formal law, as taught in law
school, and the enactment of cases in court. In-depth interviews enabled the
authors to document the distinct points of view of the experienced
practitioner and the novices on the salience of law to the practices of the
magistrate.

In Chapter Three: ''Practical Solutions: Praxiological Analysis of Judgments
in Civil Hearings'' Pedro Heitor Barros Geraldo uses handwritten transcripts
of courtroom interactions to recover revealing moments in interactions between
the judge and litigants at a French District Court. In addition to explaining
how the salience of law is integrated into discursive exchanges between
professional and lay participants, the author investigates the issue of how
law is integrated with ordinary interactional practices and lay knowledge,
while also retaining institutional specificity. 

This theme is pursued further in Section II: ''Practical Pedagogies in the
Performance of Legal Activities'', which focuses on explicative transactions,
i.e. interactive procedures that both accomplish legal work and instruct
novices on how to take part in such work. 

Chapter 4: ''Hearing Clients' Talk as Lawyers' Work: The case of the Public
Legal Consultation Conference'' by Shiro Kashimura analyses informal
consultations between lawyers and clients in civil and criminal cases at a
stage prior to going to court. The author examines how law professionals and
lay participants manage to communicate in ordinary language, while also
shaping accounts of events in terms of legal relevancies. The chapter uses a
conversational analytic approach to the interactional sequences, and focuses
on how the lawyer ''hears'' the client's story , while showing interest in the
details and shaping the story to highlight legally relevant terms and themes.

In Chapter 5: Producing Records of Testimony: Some Competent Legal Methods for
Incompetent Trials'' Kenneth Liberman examines exchanges in criminal trials in
the Australian Outback involving Aboriginal witnesses and defendants. In these
cases, problems with understanding that are endemic to lay-professional
exchanges are compounded by those associated with deep differences between the
languages and ways of life of Aboriginal and Anglo-Australian participants.
When the questioning takes the form of leading questions by cross-examiners,
affirmative answers can be damaging to a witnesses' case and the asymmetry of
interactional contexts can lead to important consequences.

The section on ''Speech, Text, and Technology in Testimony'' concerns various
ways in which technologies of writing, recording, and relaying events enter
into the moment-to-moment conduct of legal work. It shows how the
communication technology through which testimony is generated and coordinated
– through the interactional machinery of interrogation, through verbal and
literary reports, or through a video link – has consequences for the
sequential and logical organization of testimony.

In Chapter 6: ''Reporting Talk When Testifying: Intertextuality, Consistency,
and Transformation in Witnesses' Use of Direct Reported Speech'' Renata
Galatolo discusses reported speech, which is traditionally classified in terms
direct reported speech (DRS), indirect reported speech (IRS) and free indirect
reported speech (FIRS) (Coulmas 1986). It is commonly agreed that DRS is not a
literal transposition of what was actually said at a different time and in a
different situation. The discourse attributed to the original speaker,
reported in a different context, is subject to re-contextualisation.  The
original speaker’s words are subject to an operation of selection and are
reported only partially (Clark & Gerrig 1990). The author shows how the
apparently same quotations, depending on their sequential positioning and on
very small variations, can function as evidence of very different versions of
facts. 

 Chapter 7: ''Turning a Witness: The Textual and Interactional Production of a
Statement in Adversarial Testimony'' by Michael Lynch focuses on a single
fragment of testimony, which is extracted from a series of writings,
depositions, and courtroom testimonies by the parties to a highly publicized
civil trial in the US involving the teaching of creationist doctrines in
publicly funded schools. The principal parties were the witness who was
quoted, the lawyers who interrogated him, and the judge. The analysis traces
the fragment through a chain of written documents and testimonies, to show how
the adversary parties and the judge worked it into a quotable statement
attributed to and (arguably) acknowledged by the witness.  The chapter uses
court materials to document how the witness’s testimony was turned into a
supportive statement for the adversary side. The analysis shows how law at
work involves an intricate reading and rereading of written texts within a
series of interactional exchanges between interrogators and witnesses.

In Chapter 8: ''Is there Someone in My Videoconference Room? '':  Managing
Remote Witnesses in Distributed Courtrooms”, Christian Licoppe and Laurence
Dumoulin examine court hearings in which one or more witnesses testifies
through a video link to a remote site. Their study uses conversation analysis
to compare the temporal and sequential organization of the video-linked
testimony with the organisation of testimony when witnesses are present in the
courtroom along with other parties in the hearing.

Section IV: ''Deviance, Membership Categories, and Legalities” shows how
membership category analysis (MCA) provides a suitable resource for studies of
law at work, as it highlights the way in which vernacular characterizations of
persons, actions, and environments are presented and contested in relation to
formal legal categories. In all three cases, characterizations of actions and
persons do normative work to cast or mitigate blame.

In Chapter 9: ''Hate Crimes, Labels, and Accounts: Pragmatic Reflections on
Hate Crime Law in the USA'', Tim Berard suggests a way to integrate an
ethnomethodological treatment of membership categories with a constructivist
orientation to the labelling  of deviance. The author discusses accusations of
''hate crimes'' and defences against them that present the expressions of
motives in question as exercises in free speech. The differences between such
characterizations open up questions about how specific labels are objectified
through legal work.

In Chapter 10: ''Descriptions of Deviance: Making the Case for Professional
Help'' Sally Hester and the late Stephen Hester also use an
ethnomethodological approach to membership categories in their analysis of
referral sessions in which teachers and educational psychologists review cases
of students who were deemed to be ''deviant''. The hearings are informal, but
they involve some elements of a trial, in which the behaviour of the student
is reconstructed from available records and recollections. The authors
conclude that descriptions are always selections from alternatives, that they
are contextually contingent and recipient designed and that they are deployed
in order to accomplish specific actions.

In Chapter 11: ''Discursive Cartographies, Moral Practices: International Law
and the Gaza War'', Lena Jayyusi analyses contested accounts of civilian
deaths during the 2008-2009 Gaza War. The contested issue was whether Israeli
military actions that resulted in publicly documented death and destruction in
civilian neighbourhoods in Gaza violated international law. One of the
contested categories is that of civilian casualties, and the extent to which
civilians are distinguished from ''enemy combatants''. A related principle is
that of proportionality: was the harm done to civilians proportionate to the
military needs of the party inflicting it, and was it necessary and last
resort? The fundamental disjunction in the war was that between an account of
self-defence advanced by Israel and an accusation of war crimes advanced by
opponents of the war. What is at stake was not simply an opposition between
statements couched in terms of international law, but a disjuncture between
what ''anybody'' could see and carefully crafted, defensively designed public
statements.

EVALUATION

An extensive body of scholarly literature focuses on the search for universals
or the essence of law, while this collection demonstrates that law is highly
diverse, and that we cannot understand either its practical or moral
dimensions without considering specific examples. Rather than treating law as
a body of doctrines, the studies in this volume closely examine specific legal
practices and social interactions produced in national and international
settings, using a variety of ethnographic, ethnomethodological, and
sociolinguistic methods.  Although each chapter focuses on a particular type
and setting of legal work, together they cover a wide range of institutional
procedures, geographical regions, and interactional practices. The book
addresses what actually happens in legal practice, allowing readers to truly
see law at work. 

The volume is very well organized and highly cohesive so that individual
chapters clearly contribute to each wider topic. It will be very valuable for
anyone interested in the ethnomethodological approaches to law today since it
provides an excellent overview of the field, and offers a collection of
articles that are interesting, informative, and well written. 

Overall, this is a highly relevant, well researched and well-edited book which
will certainly inspire future research. It will be of interest to anyone
interested in legal interactions and discourse.in the legal settings.

REFERENCES

Clark, Herbert H. & Gerrig, R.J. 1990. ''Quotations as Demonstrations”.
Language 66(4): 764-805.

Coulmas, Florian (ed.). 1986. Direct and Indirect Speech. Mouton de Gruyter.

Dingwall, Robert. 2000. ''Language, Law and Power: Ethnomethodology,
Conversation Analysis and the Politics of Law and Society Studies.” Law and
Social Inquiry 25: 885-911.

Garfinkel, Harold. 1967. Studies in Ethnomethodology. Englewood Cliffs, NJ:
Prentice Hall.

Garfinkel, Harold. 2002. Ethnomethodology’s Program: Working out Durkheim’s
Aphorism. Lanham, MD: Rowman and Littlefield.


ABOUT THE REVIEWER

Lelija Socanac is Associate Professor at the Faculty of Law, University of
Zagreb. She is the head of the Centre for Language and Law and the Foreign
Language Department. Her research interests include multilingualism, contact
linguistics, (historical) sociolinguistics, critical discourse analysis and
legal linguistics.





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