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Review of  Forensic Linguistics


Reviewer: 'Judith P. Dick' ['Judith P. Dick'] Judith P. Dick
Book Title: Forensic Linguistics
Book Author: John Gibbons
Publisher: Wiley-Blackwell
Linguistic Field(s): Forensic Linguistics
Book Announcement: 15.3243

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Date: Mon, 15 Nov 2004 13:04:48 -0500
From: Judith Dick <judy@software-mechanics.com>
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)

PURPOSE

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.

CONTENTS

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.

EVALUATION

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.


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ISBN: 0631212477
ISBN-13: N/A
Pages: 352
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