A New Manual of French Composition "provides a guide to French composition aimed at university students and the higher classes in schools. "
The LINGUIST List is dedicated to providing information on language and language analysis, and to providing the discipline of linguistics with the infrastructure necessary to function in the digital world. LINGUIST is a free resource, run by linguistics students and faculty, and supported primarily by your donations. Please support LINGUIST List during the 2016 Fund Drive.
Date: Mon, 15 Nov 2004 13:04:48 -0500 From: Judith Dick Subject: Forensic Linguistics: An Introduction to Language in the Justice System
AUTHOR: Gibbons, John TITLE: Forensic Linguistics SUBTITLE: An Introduction to Language in the Justice System SERIES: Language in Society 32 PUBLISHER: Blackwell DATE: 2003
Judith P. Dick, Software Mechanics, Nepean Ontario (Ottawa)
This book is about power. For author, John Gibbons, language is a weapon of power, second only to force. Moreover, he says the language of the law is a secret language that enables lawyers to exert power over human behavior. Gibbons wants to see the asymmetry of power between lawyers and others reversed. He suggests revisionist actions in the interest of social justice.
The author intends to explicate the "why" as well as the "what" of legal language. He wants his account to be clear, simple and objective. It is an academic treatment of linguistics. "Forensic linguistics" here include all issues of language and the law. He intends to present a "large scale mapping" of relations between them. Background information includes terminology, and descriptions of major legal systems and personnel. His model of communication shows "Context" and "Schemas", feeding into "Meaning" and "Meaning" feeding into "Communication" (Fig. 1.1, page 11). It does not specify the relations.
Gibbons's background includes work in the Romance languages, and experience as an expert witness. Currently, he is at Hong Kong Baptist University and is President of the International Association of Forensic Linguists.
The first four chapters describe legal language, the last five, social applications based on Gibbons's model of communication. "Forensic linguistics" is broadly defined in all but the final chapter.
Chapter 1. Literacy and the Law
In the author's opinion, legal language is a register that enables lawyers to exert power. He contrasts written language with the older, "orate" tradition. Using operative (prescriptive) legal documents, he demonstrates that written legal language is marked by formality, complexity and decontextualization.
Gibbons refers to Halliday's "mode of continuum" to show the effects of the transition from speech to text. According to Halliday, context and planning characterize the change. The context of oral communication at one end of the continuum, is the participants' environment. Written language, at the other end, is decontextualized. Legal documents define their own contexts and come close to the decontextualized end of the continuum. With regard to planning, speech is spontaneous, dynamic, and readily understood. In contrast, legal documents are carefully planned, logically structured, and understanding them requires cognitive effort.
Documents contain more detail than speech, but interpretative information is lost. The reader cannot perceive intonation, personal interaction, facial expressions and the like. Gibbons does not suggest how to interpret them reliably. However, he does note codification is possible only with writing. And that with the move from custom to law, absolute (strict) liability gave way to intentional harm. There is reference to an ergative case marking of intention (p. 18).
Little distinguishes legal language syntactically, other than a few patterns of use. Complex noun phrases constitute one such pattern. Gibbons uses Halliday's "grammatical metaphor" to explain how syntactic and semantic structures combine in these nominalizations. The meaning of nouns, and some other parts of speech, is distorted when they are used "metaphorically", making writing less intelligible. In law, the grammatical metaphors represent aggregations of concepts redefining nominals to represent clusters of ideas. Hence, legal language is dense, and in Gibbons's view, more difficult than it need be.
In addition, legal terms are standardized by repeated use. They acquire distinctive, legal meanings. Terms that appear in successful documents are repeatedly reused and resist change. They remain outside mainstream language as technical terms.
Gibbons is concerned that persons questioned by law officers understand what they are asked. Legal as well as linguistic knowledge is necessary to comprehend fully the meaning of questions in a legal interview. He discusses principally the linguistic content. The author does not distinguish the problem of the interviewee, without legal representation, who fails to see how his answers are interpreted by interviewers.
Gibbons identifies the problem of trying to produce good transcripts. It is impossible to produce simultaneously, a complete account of the proceeding, and a document that is easy to read. He suggests that two records be made whenever a transcript is required, one verbatim, the other, an intelligible record. He does not discuss the procedural difficulties involved in evaluating variant records of the same proceeding. He does recommend recording all official interviews electronically.
Lastly, he suggests increased use of visual aids, especially tables and graphs. In addition, he anticipates technological advances, which he believes will make legal language accessible in a manner similar to the oral culture of the past.
Chapter 2. The Pursuit of Precision
Lawyers' distinctive knowledge schema, as expressed in legal language, contributes to their dominance. Legal language is a specialist language (Halliday), even a "secret" language (Tiersma). Lawyers use it to operate out of reach of the laymen. Moreover, they emphasize linguistic precision to sustain their control.
Legal writing is unnecessarily difficult for others, Gibbons believes. It is lawyers' responsibility to enable others to understand them. Gibbons recommends, after Halliday, that lawyers adopt "an appropriate level of vagueness or flexibility" (p. 38) to improve their communication.
Furthermore, Gibbons recommends changes to the vocabulary. He would replace archaic terms such as "heretofore" and "aforesaid" with modern English. He suggests the same for foreign terms. He notes the use of speech acts, like "hereby", used to signal the enactment of legislation.
Gibbons wants to reduce redundancy. He recommends shortening multi- noun phrases, for example, "of sound mind and memory" to "of sound mind". However, the terms are not synonymous. Occasionally such phrases are abbreviated by legislation, for example, "assault" has come to include "battery" in some jurisdictions, but he seems to be advocating simplification through use in documents. In addition, he recommends using proper names for pronouns, nouns or noun phrases, for clarity, but criticizes redundancy when proper names are repeated.
He is strongly opposed to allowing judges too much discretion. In particular, definitions written as generic categories and lists of examples are subject to decision on a case by case basis giving the judges too much power as he sees it.
He extends his criticism to include legal fictions and "deeming" one thing to be another. These are unfortunate uses adopted in an attempt to be clear and expedient at once. Linguists knowledgeable about the legal concepts involved could certainly help improve things here.
Statute section numbers are used often as names especially in the United States, where codification is common. Gibbons regards that convenience as akin to slang, which constrains comprehension.
Gibbons strongly dislikes legal drafting, the use of logical structure, connectors and propositions because they are difficult to follow. "And", "or" and "not" are interpreted logically in legal text but Gibbons argues for the everyday interpretations. He especially wants "or" to be interpreted as exclusive "or". For him, the identifiable elements of statutory interpretation are textual semantics, legislative intent and the application of societal standards. He argues for linguists' involvement in statutory interpretation. But he does not show us how this would work. Legislative intent, in particular, is difficult evaluate, which he recognizes, but does not fully describe.
Judicial interpretation and the use of precedents are criticized because they enable judgements to bind future decisions. He sees the practice as making the law resistant to change. He would like to see linguists hired to explicate the reasons for judgement grammatically. Descriptive linguistics, he says, could make the interpretation explicit and could interpret the context semantically.
Chapter 3. Interaction and Power
Legal language is used in court proceedings to sustain the "asymmetry" of power between lawyers and laymen. Gibbons discusses inter-personal relationships in the primary reality he defines as the courtroom situation.
Gibbons dislikes the Adversarial System. He sees it as fostering lust to win in a conflict akin to war, where evidentiary proof, rather than truth, prevails. He compares it negatively to the Roman Law System (Civil Law System, Inquisitorial System, although it lacks cross- examination. His principal concern is the linguistic use of social power to achieve desirable verdicts, rather than "balanced justice".
Court officers impress people with their power by the way they use language. Power indicators include fluency, coherence, repetition and control. The unequal relationship between questioner and questioned is enhanced by the use of dress, forms of address, and tone of voice. Politeness and formality thought to coerce respondents to give desirable answers. Overcorrecting and shifting to formal language always signal the use of power.
Gibbons describes the presentation of evidence as narrative. Lawyers use timing, turn taking, and attitude to maintain their control. They target either the information or the witness. Subjects must respond, and may seldom initiate. He discusses rhetorical devices used, among them, belaboring issues, confrontation, rapid fire questioning, and the use of triplet terms for emphasis. Rhetorical reasoning is not discussed.
Questions identified include those containing presuppositions, polar (yes or no) questions, leading questions and tag questions that lead to agreement. Some questions have rejoinders; others are reformulated to change information content. A negative form may be used to provoke a response and so lead to a witness damaging his own credibility. Speech act labels may also be used to attack credibility. Examples are, "conceal" and "complaint". Some lawyers are said to exploit the biases of jury members.
Gibbons compares "scholarly" argument preferably to "adversarial" argument (p. 126-7). In it adversaries try to argue in parallel, point by point, instead of reasoning toward proof of a proposition. Gibbons sees the adversarial model as totally one-sided. He is judging courtroom argument as a kind of discourse, but opposing counsel is not the primary audience.
Chapter 4. Telling the Story
Gibbons discusses his secondary reality, the case itself, and defines as a tertiary reality, determining its place in law. He uses a genre framework, along with the three realities he has defined, to give a general understanding of legal process and discourse, while recognizing that it does not offer a complete picture (p. 161).
He identifies three audience factions: the primary audience - the decision- makers, the secondary audience - some segment of the public, of the universal audience, and thirdly - a legal authority determining the possibility of appeal.
Gibbons perceives legal narratives as attempting to establish blame, convince the judge and attack the opposition. The analysis of the case presentation as narrative involves time or sequence; action or purpose; intelligibility or experience. Lawyers in contrast commonly see themselves as attempting to persuade the court of a determinative point of view they regard as the correct solution to the conflict before them.
Further, he classifies legal narrative as a "genre" a specialist form of discourse whose use solidifies a group and its power. He gives examples of individual subgenres and their interrelationships as parts of a larger whole.
Opening statements show the skeleton of the narrative. A master narrative consists of cumulative pieces of evidence. "Satellite narratives" fill out the skeleton. In Gibbons's view, the lawyer's concept of coherence denies the importance of ordering. Their sequencing, in his view, may be used to distort the narrative of the case.
Jurors are said to experience a coherent narrative only rarely. They have expressed interest in giving their own reasons for decisions (no reference given). Stygall sees the jurors as doing the cognitive work of constructing a narrative from the fragmentary evidence (p. 155). Gibbons is concerned that jurors may have difficulty understanding if their narrative experience is culturally different. There is little discussion of jurors as triers of fact, and little apparent awareness of their character as peers of the defendant.
Other case narrative elements include procedural genres interwoven as the trial progresses. The example shown is the evidentiary rule concerning hearsay.
The tertiary reality deals with placing the case in its legal framework. It involves two tensions, differences in the competing accounts of the advocates and determining what decision will constitute a good legal fit, a good and legal resolution for the conflict.
Although Gibbons comments on the imperative nature of statute law, he gives no description of statutes published by session, codified, updated, cumulated available to search online, or other. He briefly describes case law resources. He neglects the abstracts in head notes and the digests, citation rules, and the reporter systems as well as citation. Gibbons, surprisingly, says he finds it difficult to separate issues from discussion in case reports (p. 138).
There is an unfortunate statement regarding "obiter dicta". The author says that they express "some kind of moral to be drawn from the case" (p.136). They may do that or say other things, but they are simply comments, that is, they may not be reasons for judgement, part of the ratio decidendi. Obiter are collateral remarks and do not have binding authority but are sometimes persuasive. (Black's Law Dictionary, any edition).
Police interviews are thought to be more successful when "cognitive" rather than structured. There is no mention of preparing witnesses for trial. Linguists' can be very helpful with this task. However, if giving expert testimony, must themselves be prepared to face cross-examination knowledgeably.
Chapter 5. Communication Issues in the Legal System
Psycholinguistic testing, linguistic analysis and ethnographic data are presented to show that legal language is difficult to understand. Gibbons makes recommendations for improvement in intelligibility in order to alleviate lawyers' preponderance of power.
The goal is simpler and clearer text. The author favors the Plain Language Movement principles. Moreover, he wants to see register changes from written to oral language, and from technical to everyday use. An example of the sort of abuse he disparages is the oral presentation of written jury instructions.
He advocates the rules of good composition. In legal writing that entails simplifying sentences by reducing the number of conditions and limiting the use of scoped modifiers. He recommends eliminating the "syntactic dislocations" of legal drafting, in particular, the hierarchical statue references.
In his ideal model, modern native terms replace archaic expressions ("shall you oblige") and foreign words ("amicus curiae"). All "unusual" words such as "induce", "propose" and "aggravation" should go too. Complex morphology should be avoided. Complex noun phrases are criticized again, because of the density of information they convey.
He discourages using hidden negatives like "forbade", and "deny". Multiple negative expressions are difficult. Modals such as "must", "should", and "may", are said to enhance comprehension. In contrast, lawyers and some computational linguists have found them difficult to interpret clearly. Although passives are descried, they are thought unavoidable but ought to have recognizable agents. He advocates avoiding grammatical metaphors, but recognizes the unavoidable tradeoff, when phrasal complexity is reduced, sentence complexity increases.
Writing clarity requires that participants be designated explicitly.
Gibbons advocates using personal pronouns instead of phrasal designators like "the party of the first part", which he considers impersonal, and inhuman. However, in practice, pronouns often present referent problems. "Whiz deletion", the elliptical use of relative clauses without appropriate connectives, masks syntactic complexity and should be avoided.
Discourse level documents ought to be tested for intelligibility, a superb idea! The author further recommends psycholinguistic testing to locate linguistic complexity. He also likes using questionnaires to test comprehension . Police are advised to test the comprehension of their interrogation scripts to ensure that subjects will be able to understand their questions.
Chapter 6. Language and Disadvantage before the Law
The author advocates suiting the treatment of minorities to their need, since equal treatment is not necessarily just treatment. Language devices and questioning styles can seriously damage the credibility of those interrogated. He distinguishes interviews and interrogations clearly, and discusses them with evident knowledge, but without consideration of the perceptions of the interviewers or interrogators.
Lawyers ask questions designed to confirm their arguments, and so may distort the truth. The questions are designed to get the answers they want, such as polar questions (yes/no). Coercive questions and technical language are difficult to understand for those who are less than fluent, such as members of linguistic minorities, recent immigrants, aboriginals and others. In addition, those subject to intimidation, including children, assault victims, and people with cognitive defects, have difficulties especially if the questioner's attitude is forceful. Deaf people and those lacking in literacy or fluency relate positively to politeness and a pleasantness. Many members minorities have trouble understanding the dialect of educated officials. Moreover, they are affected by awareness of how officers and lawyers perceive them, because of their social standing.
Gibbons stresses again the need for the official use of everyday language. Uncommon terms should be eliminated. Similarly, syntactic complexity should be reduced such as 'as a result of ...'. Should someone fail to respond, his silence may be misinterpreted. Absence of response may be misinterpreted. Some "pardon" responses asking for repetition or clarification, sound like apologies.
Indications of failure to communicate may be overlooked. Examples include, a repair sequence, taking a number of turns, confusion of the meaning of 'wh' terms such as 'when' for 'where'. Repair is occasionally not done though a need is apparent. Some mismatching answers are identified as showing difficulty, but masking lack of comprehension.
Chapter 7. Bridging the Gap
Gibbons discusses using translation and interpretation to equalize social differences before the law. Translation deals with written language, and interpretation with speech. Gibbons wants legal interpreting to be certified and recognized as a profession.
People who lack fluency have trouble with conceptual content, pressure and culture shock. Liaison officers could help. Interpreters ought to be available. They are essential if oral evidence is taken from a person who is not fluent. Legal personnel are said to resist interpretation. There are certainly problems evaluating interpretations, and it is difficult to get skilled interpreters. Gibbons regards the resistance as a coercive use of legal discretion, on occasion.
While the interpreter performs instantaneously, the translator has time to consider. Gibbons regards translation as a transformation, not a conduit. The representation is not exact, but should be neither more nor less than the original. A translation is judged adequate if it serves its purpose. He allows for changes in register, question form and discourse markers to facilitate translation. The correct propositional word from another register may be used if an exact correlative is not possible. Questions in the source language may not be as well marked as they are in English. The loss of legal formalisms such as, 'I put it to you ...' he regards as regrettable. The witness's perspective is often lost in translation. Discourse markers that strengthen or weaken perspective testimony may be coercive. Most are lost because of low salience. Redundancy is excused to achieve clarity. The active is preferred over the passive.
In Gibbons's opinion, language rights have been advanced by the media more than by education. They have improved the minorities access in their own languages to government agencies.
Chapter 8. Law on Language
The author discusses language rights, language crimes and legislative interpretation.
Minorities struggle for the right to use their own language for public purposes. Gibbons talks about official bilingualism in Canadian provinces (p.259) but neglects to say that federal legislation promoting bilingualism has been in effect since 1969. He discusses the right to silence and surveys jurisdictional differences in application (p. 260). In addition, he talks about the right of the accused to remain silent under Roman Law while the court may draw any inference it chooses from his silence. Witnesses are another matter. Gibbons is supportive of recognition, but does not analyze the right or alternative interpretations in depth.
Language crimes are discussed acknowledging Shuy, among them perjury, bribery, plagiarism, hate crimes, slander and libel. Gibbons regards the statutory definitions as unsatisfactory. Linguistic behavior ought to be determined, in his opinion, by linguistic function combined with 'common sense constructions' and social consensus, rather than by judicial interpretation. In particular, he thinks that reasonableness tests leave too much to the discretion of the court.
In analyzing specific functions, Gibbons finds Searle's speech acts framework too limited as it encompasses only the utterance. Sequences of speech acts need to be considered together. Once the nature of the contested behavior is determined, it is necessary to establish its relationship to the law. Semantics, contexts, genres, comparative knowledge schemas, language levels and cultural contexts ought to be considered, as well in judging the behavior.
Each crime has distinctive elements and linguistic markers. Perjury, he thinks, must be interpreted narrowly to avoid abuse. Meaning depends upon the context. Truthfulness depends on linguistic form, and on the meaning, which the speaker intended the hearer to attribute to the utterance. In bribery, the receiver must understand the offer and accept it as a bribe for a crime to occur. Threats are "slippery' speech acts. The linguist is advised to consider the context. Understanding conspiracy includes more than language, because the conspirator must participate in the event, not the conversation.
In hate crimes freedom of speech, competes with freedom from vilification and judgement must be applied. The cases involve interpretation of meaning (sometimes local), and evaluation of the degree of harm done. He briefly discusses analysis of the intended meaning of speech acts (p. 275/6). Perceptively he mentions the problem of unintentional prejudice; for example, it is difficult to deal with the racism of those who do not see themselves as wrong. Again, applying the test of whether a reasonable person would find the action offensive in the time and place is inadequate in his view. It leaves too much up to the judiciary.
Gibbons makes some recommendations for new and revised legislation. He wants linguists involved in the process of legislative interpretation. In general, he is particularly concerned that particular social values be considered and that language interpretation reflect everyday usage. Legal drafters work reflects lawyers' experience of interpretation in courts.
Chapter 9. Linguistic Evidence
Finally, the author deals with "forensic linguistics" narrowly defined as evidence given about language. Drawing on his own experience, Gibbons tells us that a forensic linguist's work involves authentication. Communication and authorship are the principal areas of investigation. The acceptability of their evidence depends on their expertise (the rule of common knowledge), the validity (the rule of ultimate issue) and reliability (verifiability) of the evidence.
Communication issues include language comprehension and language crimes. The components of effective communication are said to be wording, a designated participant and specific content. The linguist commonly examines the content of the communication and the social context.
In addition, linguists give evidence about sounds -- their stability, interpretation and changes. An example is the pronunciation of English by those who use it as a second language. Linguists may determine whether transcripts replicate speech. They give evidence about second language speakers proficiency and comprehension. Comprehension is tested with less common words such as "inducements" and difficult syntax like complex clauses with chains of semantic relations, and multiple negatives. The hearer's background and intent may be brought to bear upon issues of comprehension.
Trade name evidence determines whether proposed names are legally eligible, and distinctive enough. Several examples given depend upon morphological analysis.
In addition, Gibbons includes anecdotal evidence about discourse analysis. An example shows barriers to communication made intentionally. Linguists may interpret ambiguous pronominal references, or decode texts.
Textual interpretation involves legibility, handwriting and textual comparisons. The author discusses plagiarism. It is easier to eliminate suspects than to identify a one. Negative identification is very reliable evidence. However, positive but inconclusive evidence, can add weight to an argument. Some speech traits, like intonation patterns, are distinguishable by ear or machine. Gibbons describes methods and technologies.
Linguists may make profiles of speakers for identification using speech or writing samples. They can give information about their age, gender, and perhaps background and occupation. Knowledge of accents is useful especially if one has native experience with the language.
Semantic interpretation is in demand. Gibbons briefly discusses lexical analysis and the advantages of computerized corpora. He is a fan of concordances and computer searches of all occurrences of a word in a given corpus. There is no discussion of ontological issues.
Gibbons has achieved his goal of presenting a broad overview of forensic linguistics as an introduction to the subject. His descriptive treatment is rich with data and detail taken from his experience. Summaries seldom do justice to descriptive texts. One can but show interesting highlights. Many references are included to help the reader to find his way. The book will certainly be of interest to linguistically inclined readers, who share his social concerns, and to those with an interest in forensic linguistics.
However, the account is a very personal one. It is clear that the author has been disappointed by lawyers and police. He does not give us his philosophy of law and justice but does make clear his disaffection for lawyers. He is antagonistic to their methods without coming to terms, at least in this book, with the problems they encounter, for example, resistance in interrogations.
Gibbons is passionate about the intelligibility of oral language. Moreover, he is anxious that the power asymmetry, between legal officers and laymen, be reversed. He is not enthusiastic about logic, evidence, and proof. He is interested in truth in opposition to proof. It appears that he thinks that it will be easy to determine once the coercive methods of lawyers and police are abandoned. He is clearly concerned about human values, and about clarity in communication between the powerful and the less than powerful.
There is little tension between the law and linguistics in the discussion of forensic linguistics. The tension is between the author's sociological values and the way he perceives the law working. At times, the tension approximates a class struggle. It may be that he has limited his audience appeal. Like thinkers will doubtless agree with him, but skeptics are unlikely to be persuaded by his opinions, without further justification.
Gibbons wants decisions to reflect society's norms determined by his standards. lawyers commonly regard legal process as conflict resolution with consistent decisions. The difference between these views accounts for different expectations of legal proceedings.
The author defines courtroom activity as a three-part reality consisting of the courtroom scene, the case itself, and its place in law. He shows a possible contribution of forensic linguistics to each of the three realities. The most interesting is of the primary reality, the courtroom interactions. The description of the secondary and tertiary realities is less so. The analysis of the case presented at trial as a discourse tells us about both the use of language and the social relationships. However, it does not aid in understanding the case content. It does convey information about interpretation in context.
And it conveys information about the facts and interpersonal communication, but nothing about the content of the conflict and reasoning to decision, or about successful arguments.
Although he often discusses grammar, Gibbons says nothing about logic and language. He advocates using grammar to explicate reasoning. The examples demonstrate the clear expression of ideas in everyday language. He describes the use of rhetorical devices in law, but not of rhetorical reasoning. The method he proposes for analysis of legal language in the second and third realities does not penetrate reasoning, and he does not describe argument types. He compares legal argument with scholarly argument. However, reasoned arguments are directed toward proving propositions, through sequences of steps. Adversaries may present differently structured arguments and alternative arguments as well.
Gibbons apparently has little sympathy for, or interest in lawyering. Fair enough. However, he seems to want to override legal reasoning and to substitute for it the informal conversation of the market place. Interestingly, although he claims not to be able to separate issues from discussion, he often discusses issues quite clearly. In addition, he does not seem to appreciate the open texture of legal concepts. He sees the law as static. In short, the linguistic analysis does provide useful information, but does not touch all the bases. It does not touch upon the heart of the conflict, which is heavily dependent on language use. The forensic linguists' power weapon, would be stronger were it to combine linguistic and legal knowledge, whether by working closely with those who know the law or by integrating legal and linguistic principles in their own repertoire.
The claim that legal language is secret is extreme. Statutes and cases are published in print and electronically. The law has high quality research tools, the envy of other disciplines. Although a certain rigor of mind is required, one has but to read and learn. Formal legal education of course goes further and teaches appropriate skills. However, finding and reading the law with understanding requires literacy.
As for the lawyer being responsible for the understanding of his hearers, he must surely communicate clearly. But accommodating the needs of all disadvantaged participants is surely an administrative concern. Additional aids are available, some of which, the author himself describes.
His use of language as a weapon to effect social justice raises concerns about the quality of that weapon and the affect it will have. The linguistic method Gibbons outlines does not penetrate the second and third realities he himself defines. Nor does he show how he would evaluate judicial reasons for judgement, although he does mention it. It is not clear how "balanced justice", can be achieved. It not apparent how flexible and vaguely expressed law can bring about positive results. He mentions making decisions based on common sense feelings. He wants to determine truth rather than evaluate proofs. However, he does not provide any assurances that his method protect not enable someone to make arbitrary choices.
It would be useful to have a draft statute written according to his rules to compare with a product of the legislative drafters he dislikes. Although his trust in people's judgement is attractive, can it be less it result in justice that is more reliable than judicial discretion. The common sense feeling he advocates is worrying if applied to finding the truth and assessing norms. When compounded with the recommended "acceptable level of vagueness and flexibility" in prescriptive language that he suggests, his solution is threatening.
It is much less determinative than the tests of reasonableness he sees as giving the judiciary too much discretionary control. Presumably, he wants to replace the reasonable man, with scientifically determined societal norms. If that is so, are we currently in a position to be able to do that well?
Using linguistics as a tool to lever power against a group with legal expertise raises the specter of replacing one group of experts with another. There are well established mechanisms for bringing about change in the law.
In Gibbons's partiality for Roman Law, he underemphasizes its authoritarian aspects. A comparison of the adversarial and inquisitorial systems is not appropriate here, but the interested reader will compare for himself.
About statute interpretation, one accustomed to legal drafting principles would be loath to abandon them too readily. Since Gibbons recommends forensic linguists as consultants in statutory interpretation, we need to know how far he will deviate from the traditional interpretation of statutes in the interest of justice. It is most likely, he would advocate tempering the statute's text with knowledge of the society as it is, involving statutory intent. His argument in favor of an plain language use is not persuasive, unless one shares his dislike of legal drafting, although all of us have our quibbles.
The book contains many examples including anecdotes, summaries of cases, case reports, and opinions. The author does not claim that they are representative according by any standard. He has described examples he finds telling, slices of life, some with references. It is sometimes difficult to tell whether he is discussing a criminal or civil matter. Moreover, it is not always clear whether a trial is subject to the judgement of judge, jury or both. It seriously affects procedure.
The text reads quickly and easily, and is repetitive. We return again and again to the same themes, the asymmetry of power, the intelligibility of oral language, the density of legal language and its unnecessary difficulty. He often belabors a point. Once or twice, I felt as if subjected to propaganda. Gibbons often reconsiders concepts with additional detail or from different perspectives, fashions them like Balzac, with cumulative taps of the hammer. Example concepts are the right to silence and the use of complex legal phrases. I find this style results in a fuzzy impression of his overall idea. Moreover, checking back references is inconvenient, the more so since he refers only to chapter numbers. The index is passable, but not especially helpful with these cumulations. Mine fell out of the binding on the second reading, along with most of the references. However, the reproduction of the Daumier legal cartoon on the cover is a charming addition.
A few peripheral points remain. Language and knowledge are powerful tools available to us all. Let us use them with open minds and share our perspectives. Using language to lever knowledge as power can be very damaging if badly used when attempting corrections, if it doesn't work. This approach may be more appropriate in politics.
Forensic linguists' skills are useful in a number of areas. In addition to the many suggestions Gibbons makes, they can help when preparing witnesses for trial. If jurors want to give their reasons for judgement they present an interesting opportunity for a linguistic researcher. Linguists are well suited to finding out additional information about the jurors' experience of sitting and listening for long periods to live experiences they often do not share. How do they respond to the dramatic courtroom scenes as well as the language of the participants. We need to know how to make clear to them the entailments of the legal choices they must make.
Gibbons feels that the juries ought not to have to do the cognitive work of sorting out the case narrative. In the interest of truth, surely they ought to work through the case on their own terms, in order to make their own decisions.
Moreover, linguists can help jurists become more sensitive to their own use of sociologically loaded language. Not all appeals to bias by counsel are intentional. For example, sexual assault and custody cases, are fraught with culturally loaded language. Knowledgeable linguists can certainly help in other ways. Especially if they are willing to undertake the work of professional or expert witnesses, with the level of objectivity required in their jurisdictions.
Gibbons makes many good suggestions for reading, but directs the interested neophyte first to the statutes and regulations. Although they are the backbone of the law, it is a forbidding start for a beginner. Spending an evening with one of the great jurists can introduce the interested reader to their world, and give him or her a taste of their wisdom, and humanity, as well as the law. Generally, the writing is elegant. In places, it is unsurpassed. So, why not put aside the power struggle for a bit, and spend a few hours with Blackstone, Oliver Wendell Holmes, or a jurist of your choice. Their plots are more interesting than "Law and Order", and the written analysis of evidence overshadows "CSI'" graphics. Attack the statutes when you have a problem about which you need information. Then they will readily divulge their prescriptive details within well-defined contexts, with precision, and sometimes, even clarity.
ABOUT THE REVIEWER:
ABOUT THE REVIEWER
Judith P. Dick had more than ten years experience as a legal researcher before returning to school to study for her doctorate. The program she entered at the University of Toronto, included linguistics. Her research focused on the conceptual retrieval of contract case law. Judy is currently in Ottawa, working at an object-oriented consulting firm, Software Mechanics. Her interests include ontologies, conceptual graphs, legal arguments, semantic analysis, object-oriented architecture, design, development and testing, C++ and Smalltalk computing languages.