32.1775, Review: Discourse Analysis; Forensic Linguistics: Leung, Durant (2020)

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LINGUIST List: Vol-32-1775. Thu May 20 2021. ISSN: 1069 - 4875.

Subject: 32.1775, Review: Discourse Analysis; Forensic Linguistics: Leung, Durant (2020)

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Date: Thu, 20 May 2021 16:00:35
From: Geoffrey Sampson [sampson at cantab.net]
Subject: Meaning and Power in the Language of Law

 
Discuss this message:
http://linguistlist.org/pubs/reviews/get-review.cfm?subid=36678180


Book announced at http://linguistlist.org/issues/31/31-3584.html

EDITOR: Janny H. C. Leung
EDITOR: Alan  Durant
TITLE: Meaning and Power in the Language of Law
PUBLISHER: Cambridge University Press
YEAR: 2020

REVIEWER: Geoffrey Sampson, University of Sussex

SUMMARY

The genesis of this book was a 2014 international conference at the
Harvard–Yenching Institute, which brought together law, linguistics, and
anthropology scholars interested in the various relationships between law and
language.  The institute was founded to foster intellectual
cross-fertilization between America and, originally, China – now Asia more
broadly.  (“Yenching” is a literary alternative to the name Peking/Beijing for
the current Chinese capital, and when the institute was founded was the name
of a university there.)  The gap of time between conference and publication is
explained by further discussion and critical exchanges having occurred after
the face-to-face conference.

After an editorial introduction, the book contains thirteen chapters by
different contributors, as follows (I re-order the sequence slightly in order
to bring closely-related chapters together):

Laura Nader, in “The unspoken language of the law”, argues that, in the USA,
discussions of law both in the mass media and by academic lawyers and
linguists systematically avoid using certain apparently-relevant vocabulary
items, including “injustice” and “corporate crime”, and avoid examining the
meanings of some words that are used, e.g. “rule of law”, “terrorist”.

Alan Durant, “Seeing sense”, discusses a range of key law-related concepts,
such as “law” itself, “authority”, “equitable”, and others, claiming that not
only are they each polysemous in ways that have been little noticed by
philosophers of law, but that this semantic vagueness or complexity serves a
social purpose.

Christopher Hutton, “Hiding in plain sight”, begins from the principle of
English law that a word in a statute means what it means in ordinary usage,
unless it has explicitly been given a special definition, and goes on to
analyse this concept of “ordinary language”, with reference to recent cases
about transsexual marriage.

Katsuo Nawa, “Effects of translation on the invisible power wielded by
language in the legal sphere”, examines constitutional law in Nepal, a country
that was never colonized and where, consequently, no European language has
ever had official status, but where nevertheless modernization of its legal
system has involved importing various Western legal concepts that sometimes
clash with the assumptions embodied in the Nepali words used to translate
them.  His main example relates to the “right to religion”:  “religion” is not
a language-universal category, the Nepali word equated with it is ‘dharma’,
but ‘dharma’ is inherently a property of a community, not a matter for
individual choice.  Likewise, Janny Leung’s “Ideology and political meaning in
legal translation” is a theoretical discussion of problems arising when
statutes are translated between languages of societies having very different
legal histories, as when Hong Kong laws are translated from English into
Chinese.

Janet Ainsworth, “Law and the grammar of judgement”, examines how the
operation of law can be in part controlled by structural features of the
language in which it is operated.  For instance, the significance of witness
testimony in Turkish is affected by the fact that Turkish verb forms encode
the distinction between an action being reported from the speaker’s direct
knowledge or only from inference or other indirect knowledge:  Turkish grammar
has no equivalent for the neutral English “he came …”.

Marco Wan’s “The language of film …” paraphrases Richard Sherwin as saying
that “in an age in which the law has become inextricably intertwined with
elements of popular culture, lawyers need to cultivate their ‘visual literacy’
in order to understand the visual jurisprudence of cinema and the image”.  Wan
exemplifies this visual literacy by explicating a Hong Kong film about a
Chinese variety of vampire in terms of clashes between Chinese and Hong Kong
law since the 1997 handover.  (It is important to bear in mind that this
chapter was written before the developments of the last few years in Hong
Kong; I wonder whether, in 2012, Wan himself would describe what is happening
there as “continuing negotiation between the new, Chinese legal order and the
persistence of the common law values and concepts” – negotiation is a
two-sided matter.)  I should say, though, that I am probably not the right
person to comment on the vampire film as unconscious political metaphor,
having little knowledge of popular culture.

Gregory Matoesian and Kristin Enola Gilbert, “Let the fingers do the talking”,
discuss the idea that the effectiveness of legal advocacy depends heavily not
just on the words used but the body-language used with them.  They illustrate
this by detailed analysis of a video recording of the defence counsel’s
closing speech in a 1991 American case where William Kennedy Smith was
acquitted of rape.

Meizhen Liao, “Questions about questioning”, contrasts the respective roles of
questioning in Chinese and U.S. courtrooms via detailed numerical logs of
questions of various types in one case from each country.  He finds, for
instance, that wh-questions are the commonest type in China but yes-no
questions are commonest in the USA.

Siddarth Narrain, “Law, language and community sentiment”, examines the
history of legislation and case law in India, before and since independence,
with respect to the tension between the free-speech principle and the
substantial risk there of inflaming emotions likely to lead to disorder across
the Hindu–Moslem divide.  He finds that various factors in this history have
created “a potent cocktail that has allowed for a dangerous mobilization of
claims of hurt sentiment”.

Chris Heffer, “When voices fail to carry”, discusses a notorious English case
from 2013 in which the defendant Vicky Pryce was convicted of perverting the
course of justice by saying that she rather than her husband had been driving
a car that was caught speeding; she invoked the unusual defence of marital
coercion.  The reason why the case attracted national attention was that the
husband, Chris Huhne, who had allegedly forced her to lie in this way in order
to avoid penalty points on his driving licence, was a Cabinet Minister.  But
the interesting legal point was that the jury (whose deliberations, in English
law, are secret, with severe penalties for jurors who subsequently reveal
anything said in the jury room) submitted a list of written questions to the
judge concerning how they should go about their task.  To Heffer (and to me)
the questions seemed intelligent and bespoke sincere effort to take the jury’s
duty seriously.  But the judge saw them quite differently, and the media sided
with him; columnists with whose views I usually agree wrote things like “Vicky
Pryce trial has exposed a breathtaking level of ignorance and stupidity”. 
Heffer argues that, although the judge’s summing-up was “in many ways
exemplary”, it nevertheless failed to “project his voice” to the jury
adequately, and the jury’s questions likewise failed to project in the
converse direction.  Heffer offers an elaborate framework for analyzing “voice
projection” in this sense.

Lawrence Solan and Silva Dahmen, “Legal indeterminacy in the spoken word”,
discusses the fact (completely familiar to phoneticians, but not obvious to
legal professionals) that words in everyday talk are often not uttered
distinctly enough to be identified with certainty by a transcriber, so that
two sides in a criminal case may hear an utterance in ways with very different
legal implications – in one of their examples, the prosecution’s version of an
utterance ran “Conspiracy charges, they could hit him on that, too?”, while
the person who was being spoken to claimed that it ran “Stephen Charles
represented him on that one too”.  Because American courts are not
sufficiently alert to this problem, the authors say that they have not evolved
adequate routines for dealing with such conflicts.

Finally, I can represent Peter Goodrich’s concluding chapter, “The said of the
unsaid”, only by offering a sample extract – I excerpt a passage which is
entirely typical of the chapter, and not dependent for its interpretation, so
far as I can tell, on anything which precedes or follows:

“Inertia is a mode of post-ignition, of rolling on in the wake of an event – a
push, a stun, a terror – while remaining within the limits and confines of the
timidity that intimidation engendered.  Thus the meandering course of a style,
the prolixity of diction, the hesitations and deflections that anticipate and
defend against reproof and exclusion.  It is the latter threat, the spectre of
denunciation, of exposure and expulsion, that keeps the undertow of the
unsaid, precisely so as to remain amongst the said, so as to belong and to
institute, even if what is instituted is in effect nothing, an ever present
not yet, a thought to come.  The second stage, the degree Nero of
stupefaction, and even now I speak from experience, lies precisely in
avoidance, in the reigning in of thought so as to guarantee and preserve
membership of the ‘in terrorem’ group, the site of institutional reproduction
where the said is promulgated – and remains to be promulgated – while the
unsaid subsists in its silence, in the nowhere of theory.”

If you say so.

EVALUATION

Like most books comprising chapters by different contributors brought together
temporarily by a conference, this one is a mixed bag, in terms of themes but
also of quality.

Overall I believe it draws attention to many linguistic issues that are well
worth lawyers’ attention.  To a linguist it may seem strange that Solan and
Dahmen need to spell out at such length that everyday continuous speech is not
uttered with silent gaps between the words, and that not all the phonemes in
the isolation forms of words will actually be represented in the speech
signal.  But to lawyers this is evidently not well known – specific legal
cases they quote make that clear; and if the legal profession is not familiar
with this issue, it surely needs to be.

More than one contributor draws attention to the fact that meanings of words
in everyday language are inherently vague, not subject to precise definition. 
This was perhaps the central concern of philosophy in the English-speaking
world during the later half of the twentieth century, but it remained
unfamiliar to many linguists – I have discussed the follies of much of what is
called “linguistic semantics” elsewhere, e.g. Sampson (2001).  Some
contributors to the book reviewed write as though this indeterminacy of
ordinary language is a novel idea, or is perhaps relevant only or chiefly in
legal contexts – that is not so (I recommend Lakatos 1976 to readers who
suppose that words can have watertight definitions in ANY area of thought);
but it is an important fact about human language which is clearly very
significant for law, hence well worth repeated discussion in this book.

In some chapters I felt that promising work had been left in a less persuasive
state than it might have been.  After Matoesian and Gilbert have explained
that counsels’ closing speeches form the “legal crescendo of a case”, allowing
jurors to see “which lawyer REALLY BELIEVES his side should win”, I wondered
why they studied only the defence’s closing in their sample case; it was the
winning side, but could one have predicted that by comparison with the
prosecutor’s body-language?

A more serious problem relates to Liao’s comparison of Chinese and American
trials.  He gives abundant numerical data on incidence of questions in his
sample, but makes no attempt to back up his claims about differences between
China and America with significance tests.  Without using these, there seems
to be no way of knowing that higher counts for yes–no than wh- questions in
the American trial but the reverse in the Chinese trial, for instance, are
anything more than random fluctuations – in view of the low overall number of
questions in the Chinese case, on the face of it that looks quite possible. 
In fact a chi-squared test quickly shows that these differences are highly
significant (p < 0.005), but it ought not to be left to the reader to discover
that.  (Even if significant, of course, the finding does not necessarily
establish a contrast between American and Chinese courtroom practice in
general; only one case from each country is studied, so the numerical
differences might equally well reflect differences between the facts relevant
to the particular cases, or other variables.  Liao warns that caution is
required “because of the small scale of the study”, and it is reasonable to
illustrate a potential line of research by a small-scale example, but a
researcher ought to do a proper job on the limited data he has assembled.)

I also wondered whether the very elaborate theoretical framework Heffer
defines in order to analyse failures of what he calls “voice projection” added
much to his interesting account of communication breakdowns between judge and
jury in the Vicky Pryce case.  But that account is surely well worth pondering
by anyone who cares about the functioning of the jury system.

A few contributions seem different in kind from the bulk of the book.  I have
already mentioned the closing chapter; but Laura Nader’s opening chapter is
also surprising.  Authors’ contributions are not sequenced alphabetically, so
presumably the editors placed Nader’s chapter first because they felt that it
in some sense established a background for later contributions; yet it
scarcely reads like my idea of academic prose.  It is shrilly political (it is
a safe guess that Nader was not a Trump voter), and I found it hard to see how
most of it related to language, even “unspoken language”.  Much is about how
the American movement towards “alternative dispute resolution”, initiated by
Chief Justice Warren Burger in 1976, has “eviscerate[d] the best tort system
in the world”.  Even where Nader gives examples of “unspoken language”, as I
mentioned in the Summary section, they seem unpersuasive.  One would not
expect converse terms like “justice” and “injustice” to be discussed
separately, since propositions about one logically imply propositions about
the other:  if justice is rare, injustice is common, and vice versa.  Surely
it is natural to label discussion of paired concepts like these with the word
which is simple rather than the word derived by prefixation?  And I should
like to see evidence for Nader’s unsupported claim that the concept “rule of
law” was under-discussed in America.  (It was certainly not so at the time in
Britain.  Tom Bingham, ex-Lord Chief Justice, published a much-admired book
under that title in 2010, and the influential annual BBC Reith Lectures were
given by Niall Ferguson in 2012 on “The Rule of Law and its Enemies”.)  In a
discussion of the difference between civil and criminal cases, Nader makes a
statement that I can only interpret as a claim that two firms which caused
cancers by contaminating a drinking-water supply in Woburn, Massachusetts,
successfully leant on state prosecutors not to file a criminal case.  I know
nothing of the facts there, but surely such a serious accusation ought to be
supported by some kind of evidence?  We are given none whatever.

Nader is careless about facts that are not politically sensitive.  She
repeatedly refers to the Subanun people of the Philippines, well known to
linguists through the work of Charles Frake, as “Subanum”.  She says that John
Rawls published his famous book “A Theory of Justice” in 1999 – the date was
1971, when the world was much more interested in abstract philosophy than it
became by the turn of the century.  A reader who starts this book at the
beginning might not expect to find the sober, evidence-based scholarship
encountered in later chapters.

A clue to what may be going on here comes in the lead co-editor’s own Chapter
10, which is itself quite “political”.  Janny Leung suggests, for instance,
that the continuing role long after independence of English in the Malaysian
legal system represents “a form of linguistic recolonization”.  I am sceptical
about whether this is a meaningful idea; Richard Powell (2020, reviewed by me
in Linguist List post 31.928) examined the issue via extensive empirical
research, and his findings portray the retention of English as a very
practical rather than ideological phenomenon.  But it is apparent that one
co-editor, at least, wants to present a survey of relationships between law
and language in political terms, and perhaps placed Laura Nader’s contribution
(and possibly also Peter Goodrich’s) where they are in an attempt to establish
an ideological framing for the book as a whole.  If so, some intervening
chapters will have disappointed her.  The word “power” in the book title is
relevant to Leung’s and to Nader’s chapters, but by no means to every chapter.

Here and there the book contains a modest crop of minor errors or misprints. 
P. 41, “bank” as side of river and as financial institution ultimately stem
from the same root.  P. 79, J.L. Austin’s essay “A plea for excuses” referred
to the connexions men have found worth marking, not “marketing”.  P. 84, when
Hutton mentions a decision of the European Court of Human Rights in the course
of his analysis of the common-law concept of ordinary language, he should
perhaps have pointed out that most ECHR judges come from civil-law rather than
common-law traditions.  P. 124, I am not familiar with “imaginary” used as a
noun – is this a misprint for “imagery”?  P. 189, surely it was Thomas
Macaulay rather than Jeremy Bentham who introduced sections limiting free
speech into the Indian penal code?  P. 191, it is an overstatement to say “the
whole of socialist philosophy was based on a theory of class war” – that was
true of Marxism, but there have been other versions of socialism.  P. 239,
Liddell and Scott’s standard dictionary does not give “purpose” as a sense of
Greek ‘skopos’.  P. 249, “civilian lawyer” should read “civil lawyer”.

On balance I see this as a worthwhile book.  Several chapters deploy
linguistics to shed light on legal problems in a way that could potentially be
of real benefit to the law (though I did not find much in the book which draws
on law to give us new insights into language). 

REFERENCES

Lakatos, Imre.  1976.  Proofs and Refutations.  Cambridge University Press.

Powell, Richard.  2020.  Language Choice in Postcolonial Law.  Springer.

Sampson, Geoffrey.  2001.  “Meaning and the limits of science”.  In Sampson,
Empirical Linguistics, Bloomsbury.


ABOUT THE REVIEWER

Geoffrey Sampson graduated in Chinese Studies from Cambridge University, and
his academic career was spent partly in Linguistics and partly in Informatics,
with intervals in industrial research. After retiring as professor emeritus
from Sussex University in 2009, he spent several years as Research Fellow at
the University of South Africa. He has published contributions to most areas
of Linguistics, as well as to other subjects. His latest books are ''The
Linguistics Delusion'' (2017), and ''Voices from Early China'' (2020).





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